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January 03, 2014
Court rejects climate claims in mining case

The legality of an environmental impact statement (EIS) prepared by the Department of Interior’s (DOI) Bureau of Land Management (BLM), which opened the door for expanding a coal mining operation in Wyoming’s Powder River Basin, was upheld by the U.S. Court of Appeals for the D.C. Circuit. 

An EIS does not authorize an action, but, in this case, DOI’s EIS cleared the way for the state of Wyoming and the federal Office of Surface Mining to issue the needed mining permits.  The D.C. Circuit’s decision upheld most of a federal district court’s ruling.  However, the D.C. Circuit did not accept the district court’s rejection of claims that global climate change caused by prospective mining contributed to local harm as a reason to deny standing to the petitioners.

Powder River coal

Antelope Coal, LLC operates an existing mine in the Powder River Basin.  In 2006, the mine produced 33.9 million tons of coal, accounting for 7.9 percent of the coal produced in the Powder River Basin and 1.1 percent of the estimated CO2 emissions in the United States.  In 2005, the company filed an application with the BLM to make land adjacent to the existing mining operation available to lease for additional mining.  The BLM developed an EIS and then, in 2010, issued a record of decision (ROD) that divided the land into two tracts.  Based on the EIS, the BLM invited competitive bids to lease the two tracts.  Antelope Coal won the bidding for both leases, which became effective in 2011.  

Global and local impacts

The petitioners in the case, which included WildEarth Guardians, Defenders of Wildlife, the Sierra Club, and the Powder River Basin Resource Council, claimed that BLM’s EIS failed to account for climate change that would result from the projected mining activity and also failed to properly consider the impacts of the new mining on local air quality. 

Standing in the case rested on two claims by the petitioners—one, that air and water pollution resulting from the mining operations harm the aesthetic and recreational interests of the appellants, and two, that the leasing decisions would result in CO2 emissions that would also harm those interests.  While the D.C. Circuit could not agree with the petitioners’ argument that standing was established by the harm climate change resulting from expanded mining would pose to the petitioners’ enjoyment of the area and indigenous animal species, the court did agree that harm to the petitioners brought on by the local effects of the project was sufficient to establish standing.

A ‘hard look’ at climate change
The second part of the D.C. Circuit’s option looks at the merits of the petitioners’ claims.  They argued first that the BLM did not take the requisite “hard look” at the effects of its leasing decision—particularly in conjunction with other mining leases issued in the Powder River Basin—on global climate change.  In the EIS, the BLM said it is not possible to associate specific leasing actions with potential climate effects.  The D.C. Circuit agreed.  “Because current science does not allow for the specificity demanded by the Appellants, the BLM was not required to identify specific effects on the climate in order to prepare an adequate EIS,” said the court.

Local effects

The second claim by the petitioners was that the BLM also failed to take a hard look at the effect of lease development on local ozone levels.  In the EIS, the BLM did not estimate increases in ozone pollution that would result from the project.  Instead, the BLM used modeling to estimate increases in nitrogen dioxide (NO2).  The BLM explained that nitrogen oxide (NOx) is one of the main ingredients in the formation of ground-level ozone and NO2, in turn, is a type of NOx.  The BLM also noted that further modeling would be done at the permitting stage to ensure compliance with state and federal air quality standards.

Again, the D.C. Circuit sided with the BLM.  “It may have been possible or even prudent for the BLM to separately model future ozone levels but we think that, given the limitations on such modeling and the critical role NOx plays in ozone formation, the BLM’s projections and extensive discussion of NOx and NO2 emissions suffice,” the court stated.

WildEarth Guardians et al. v. DOI

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