On July 2, 2019, petitioners WildEarth Guardians, joined by other conservation groups, filed a petition for review in the U.S. District Court for the District of Colorado seeking to challenge agency approval of a mining plan modification for the coal-producing West Elk Mine in 2018 ("Mining Plan"). WildEarth Guardians v. Bernhardt, No. 1:19-1920 (D. Colo.). The defendants in this case include the Secretary of the Interior ("Secretary"), the Bureau of Land Management ("BLM"), and the Office of Surface Mining Reclamation and Enforcement ("OSMRE"). The Mining Plan authorizes the expansion of the West Elk Mine into 1,720 acres of government-owned land in the Sunset Roadless Area.
The petitioners present four arguments, all rooted in the defendants' alleged violation of the National Environmental Policy Act ("NEPA") due to the defendants' adoption of a 2017 supplemental environmental impact statement from the leasing modification stage ("Leasing SFEIS") rather than requiring an additional supplemental environmental impact statement for the Mining Plan.
First, the petitioners assert that the defendants acted in an arbitrary and capricious manner when they failed to consider a reasonable alternative that would have reduced or offset methane pollution associated with coal mining in the expanded West Elk Mine. That alternative would have involved not requiring the Mining Plan applicant to consider a methane mitigation alternative during the evaluation of either the Leasing SFEIS or Mining Plan.
Second, the petitioners assert that the defendants failed to support: (i) their determination that the supplemental environmental impact statement from the leasing modification stage was "adequate" to cover the activities permitted by the Mining Plan; and (ii) their adoption of the Supplemental EIS without any further NEPA analysis. They allege this occurred when OSMRE issued its "Determination of NEPA Adequacy for the Mining Plan" action, a decision that signaled that the environmental analysis conducted in the Leasing SFEIS for the leasing modification was satisfactory for the Mining Plan. This argument hinges on the alleged failure of the supporting documents for OSMRE's determination to include an evaluation as to whether new information not previously analyzed "may result in significantly different environmental effects."
Third, the petitioners assert that the defendants failed to take a "hard look" at the cumulative impacts of climate change. Specifically, the petitioners allege that the defendants failed to consider new information regarding carbon budgeting and regional climate impacts that has been made available since the Leasing SFEIS was approved in 2017. They also allege that the defendants failed to account for the reasonably foreseeable cumulative effects of the carbon emissions of the additional federal coal leases approved since the Leasing SFEIS in 2017.
Finally, the petitioners assert that the defendants failed to take a "hard look" at impacts to fish and water when OSMRE adopted the Leasing SFEIS for the Mining Plan. Petitioners argue that OSMRE failed to assess new information about affected water sources and fish populations that was received after the Leasing SFEIS was completed. Defendants have until September 10, 2019, to answer the complaint.
In this action, the court must examine how much new environmental analysis is necessary in an agency's decision to adopt a previous environmental impact statement. Specifically, the court must determine if the failure to account for previously unavailable or nonexistent information in the analysis and the documentation of the agency decision to adopt a previous environmental impact statement renders that decision arbitrary and capricious.
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