Environmental Groups Move to Revive NEPA Lawsuit Over Federal Coal Leasing Program
Environmental groups are seeking to revive a
climate change lawsuit regarding the federal coal leasing program, which allows
companies to lease federal lands to mine coal. The coal leasing program manages
leases on approximately 570 million acres of federal land, and produces
approximately 40% of domestically sourced coal. Over 30% of energy generated in
the United States comes from coal.
In 2014, the Western Organization of Resource
Councils and Friends of the Earth (collectively, “Plaintiffs”) filed
a National Environmental Policy Act (“NEPA”) lawsuit against the Department of
the Interior (“DOI”) and the Bureau of Land Management (“BLM”) seeking to
compel a new environmental review of the coal leasing program. Plaintiffs argued
that the DOI and BLM violated NEPA by failing to adequately consider the
climate change effects of the coal leasing program. The BLM prepared a
programmatic Environmental Impact Statement (“EIS”), pursuant to NEPA, in 1979,
before implementing the coal leasing program. It supplemented that review in
1985. NEPA requires a supplemental EIS, among other reasons, when “there are
significant new circumstances or information relevant to environmental concerns
and bearing on the proposed action or its impacts.”1
Plaintiffs seek to compel DOI and BLM to supplement the 1985 analysis because
the EIS has never been updated to assess the program’s impact on climate
In August 2015, the district court dismissed
the complaint because “supplementation is necessary only if there remains major
federal action to occur,”and it found that there is no further “major federal action” to occur with
regards to the coal leasing program.
The court found that while the original implementation of the coal leasing
program qualified as a major federal action, the issuance of leases pursuant to
that program does not qualify as a major federal action.
The court relied heavily on a Supreme Court case, Norton, where the
plaintiffs complained about an increase in RV use on federal lands that were to
be managed to sustain the area for potential wilderness preservation.
The Norton plaintiffs claimed that the increase in RV use was sufficient
grounds to require BLM to supplement its existing EIS.2
The Court disagreed, finding that there was no “ongoing federal action,” since
BLM had already approved RV use on the land, and the only ongoing role BLM
played was “informal[ly] monitoring [the area] for RV use.”3 In
contrast, the Plaintiffs argued, the coal leasing program requires companies to
seek a lease with the government before mining coal on federal land. There is a
fairly lengthy application
process for new coal leases, which includes reviews of geologic
information, cost recovery, environmental assessments, consultations with other
agencies, and public notice. In applying Norton to the case at
hand, the district court equated the informal monitoring of activities which
the government has already approved with a program in which companies must seek
governmental approval before acting.
Plaintiffs appealed to the D.C. Circuit. That court
held the case in abeyance, based on a joint unopposed motion, because on
January 15, 2016, then Secretary of the Interior Sally Jewell ordered
a moratorium on new coal leases. This order directed BLM to prepare a new
environmental review of the coal leasing program which considered the program’s
climate change-related impacts. This, in effect, rendered Plaintiffs’ claims
moot. But Secretary of the Interior Ryan
Zinke revoked Secretary Jewell’s order on March 29, 2017, ending the
moratorium on new leases and abandoning the environmental review of the program.
This prompted Plaintiffs to seek to revive the lawsuit. Plaintiffs filed a
motion with the D.C. Circuit on May 26, 2017 to lift the abeyance.
Looking Forward: Changes to the NEPA Climate Change
Recent events, such as the U.S. exit
from the Paris Agreement, have made clear that the Trump Administration seeks
to make major changes to climate change policy. The Trump Administration also
the Obama Administration’s CEQ
guidance document regarding analysis of climate change under NEPA.
What remains to be seen is whether or how the
revocation of the guidance document — which
was not binding on federal agencies or courts in the first instance — will
change the scope of the required climate change analysis under NEPA. Notably,
this issue will not come up unless the court first overturns the district court
decision and concludes supplementation is necessary. But prior to the Obama Administration’s
issuance of the NEPA climate change guidance, courts were already grappling
with the scope of required climate change analyses under NEPA. Plaintiffs’ efforts to revive their coal leasing suit
signals that such litigation is likely to continue in the future, resulting in
continuing uncertainty regarding what courts will find to be an acceptable
analysis of climate change impacts under NEPA.
1 40 C.F.R. § 1502.9(c)(1)(ii).
2 Norton v. S. Utah Wilderness All., 542 U.S. 55, 73 (2004).
at 68, 73.