WildEarth Guardians v. Bernhardt

The federal district court for the District of Colorado enjoined a coal mining company from proceeding with a mining plan in Colorado until further analysis was conducted regarding a methane flaring alternative and potential impacts to perennial streams. The court found that the Office of Surface Mining Reclamation and Enforcement (OSM) acted arbitrarily and capriciously in recommending approval of the mining plan based on other agencies’ environmental analysis documents. First, the court found that methane flaring was a reasonable alternative and that the federal agencies were required to consider it since no agency reasonably concluded it was infeasible. (The court also concluded as a threshold matter that the plaintiffs were not precluded based on litigation challenging other agency approvals related to the mine from making their argument regarding the methane flaring alternative. The court noted that the earlier litigation concerned actions involving different agencies that took place years before the actions at issue in this case. The court further noted that the court in the earlier case did not find that the plaintiffs failed to demonstrate that the methane flaring analysis was insufficient but only that the analysis had been reasonably postponed.) Second, the court rejected the plaintiffs’ argument that the defendants failed to consider the project’s cumulative climate change impacts in conjunction with past, present, and reasonably foreseeable future actions. The court said the plaintiffs waived this argument at the leasing stage and found that OSM could have reasonably concluded that the new information since the leasing stage did not significantly alter the analysis. Third, the court found that OSM should have given additional attention to impacts on perennial streams based on new information that “serves to completely reverse” the agency’s previous conclusions. The court noted that the mining company had recently filed information about a potential methane flaring system for which it was seeking Mine Safety and Health Administration approval and that OSM had thereafter sought voluntary remand without vacatur so that it could prepare an environmental assessment to consider the methane flaring proposal. The court concluded, however, that it was necessary to enjoin further work pursuant to the mining plan because “remand without vacatur or injunction would incentivize agencies to rubber stamp a new approval, rather than take a true and informed hard look.”

Five environmental groups filed a lawsuit in the federal district court for the District of Colorado challenging federal approval of a mining plan for the 1,720-acre expansion of the West Elk Coal Mine in western Colorado. The plaintiffs asserted that the federal respondents violated the National Environmental Policy Act (1) by failing to consider an alternative that would reduce or offset methane pollution associated with coal mining, (2) by failing to support their conclusion that a previously prepared supplemental environmental impact statement covered activities permitted by the mining plan, (3) by failing to take a hard look at the cumulative impacts of climate change in conjunction with other similar federal coal approvals and proposals and in light of new climate science and information, and (4) by failing to take hard look at impacts on fish and water resources. The plaintiffs also filed a motion for a preliminary injunction.