High Country Conservation Advocates v. United States Forest Service

The federal court for the District of Colorado issued a final order vacating three actions of the United States Forest Service and Bureau of Land Management that permitted expansion of coal mining in a part of Colorado’s North Fork Valley called the Sunset Roadless Area. In its June 2014 opinion, the court asked the parties to confer regarding an appropriate remedy after ruling that the agencies had violated the National Environmental Policy Act (NEPA) by failing to take hard look at potential impacts of increased greenhouse gas emissions associated with their actions. The parties were unable to agree, so the court stepped in. In vacating the federal actions, the court noted that vacatur was the “normal remedy” for NEPA violations and that equitable considerations did not weigh in favor of a more limited remedy such as the tailored temporary injunctions requested by defendants. The court said that the agencies’ decision on remand was not a foregone conclusion and that “NEPA’s goals of deliberative, non-arbitrary decision-making would seem best served by the agencies approaching these actions with a clean slate.

The federal district court for the District of Colorado ruled that the United States Forest Service (USFS) and the Bureau of Land Management (BLM) did not take the required “hard look” under NEPA at the impacts of increased greenhouse gas emissions associated with actions that expanded mining in a part of Colorado’s North Fork Valley called the Sunset Roadless Area. The three actions challenged in the lawsuit were the 2012 Colorado Roadless Rule, which included an exemption for temporary road construction or reconstruction associated with coal mining in the North Fork Valley; lease modifications that added new land to preexisting mineral leases; and approval of Arch Coal’s exploration plan for the additional land. As an initial matter, the court concluded that plaintiffs—three environmental and conservation groups—had standing to bring all of their claims. Citing the D.C. Circuit’s decision in WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013), the court rejected defendants’ argument that the alleged failure to adequately analyze greenhouse gas emissions resulting from the Colorado Roadless Rule was unrelated to plaintiffs’ alleged concrete injury of harm to their recreational interests in the Sunset Roadless Area. The court went on to find that the agencies had not adequately disclosed and considered the impacts of greenhouse gas emissions in several respects. First, the court faulted the agencies for failing to use the “social cost of carbon protocol” developed by a federal interagency working group in the analysis of the lease modification’s impacts. The draft environmental review documents had included an assessment of social costs of carbon related to disturbance of forested areas and methane emissions from mining, but the discussions were removed in the final environmental impact statement (FEIS), apparently because use of the protocol was deemed controversial. The court found the explanation for omitting the social cost of carbon protocol from the FEIS to be arbitrary and capricious. The court also rejected the agencies’ justifications for not quantifying methane emissions from mining associated with the Colorado Roadless Rule and for not estimating greenhouse gas emissions associated with combustion of the mined coal. Among other things, the court said that the detailed economic analysis of the benefits of expanded mining was at odds with defendants’ arguments that future emissions associated with the mining were too speculative to support a quantitative analysis. The court enjoined implementation of the exploration plan, and asked the parties to confer and attempt to reach agreement on an appropriate remedy.

Plaintiffs charged that certain actions by the United States Forest Service (USFS) and the Bureau of Land Management (BLM) in furtherance of the expansion of a coal mine in Colorado violated the National Environmental Policy Act (NEPA).  Among the impacts that plaintiffs alleged were overlooked were “the societal costs of mining and burning the coal” in the expanded lease area for the mine as well as the impacts of mining and burning “half a billion tons of coal … that … would stay in the ground” were it not for a loophole contained in USFS’s Colorado Roadless Rule. The complaint alleged that the social cost of the mine’s carbon dioxide and methane pollution will be between $1.2 billion and $2.2 billion.