In Western Organization of Resource Councils et al v. U.S. Bureau of Land Management et al, several environmental organizations challenged a federal agency’s approval of revised Resource Management Plans (“RMPs”) for coal development in two areas covering millions of acres of public lands and federal mineral estates within the Powder River Basin.
The plaintiffs made six claims: (1) the Bureau of Land Management (BLM) violated federal EIA law (the National Environmental Policy Act - NEPA) by failing to consider any alternative with less coal available for leasing; (2) BLM violated NEPA by failing to consider alternatives that would require producers to implement mitigation measures for methane emissions from resource development; (3) BLM violated NEPA by failing to consider the indirect effects of downstream combustion of resources extracted from the planning areas because these emissions qualify as foreseeable effects; (4) BLM violated NEPA by failing to address in the EIS the foreseeable cumulative climate impacts of fossil fuel development on BLM land both regionally and nationwide; (5) BLM violated NEPA by failing to quantify properly the magnitude of methane pollution by arbitrarily using outdated science; and, (6) BLM violated NEPA by failing to consider impacts at levels at, or below, the National Ambient Air Quality Standards under the Clean Air Act (NAAQS) and by failing to consider cumulative impacts on air quality for all federal mineral development and for regional (non-BLM) sources of air pollution.
Agreeing with the plaintiffs’ first, third, and fifth claims, the District Court of Montana found deficiencies in the Buffalo RMP and Miles City RMP that must be remedied.
Regarding the first claim, the court concluded: “BLM’s failure to consider any alternative that would decrease the amount of extractable coal available for leasing rendered inadequate the Buffalo EIS and Miles City EIS in violation of NEPA.” Western Organization of Resource Councils et al v. U.S. Bureau of Land Management et al, 2018 WL 1475470 (D. Mont. March 26, 2018), page 24, available at https://westernlaw.org/wp-content/uploads/2016/02/2018.03.23-Buffalo-Miles-City-Final-Order-revised.pdf
Regarding the third claim, the court agreed with the plaintiffs:
In light of the degree of foreseeability and specificity of information available to the agency while completing the EIS, NEPA requires BLM to consider in the EIS the environmental consequences of the downstream combustion of the coal, oil and gas resources potentially open to development under these RMPs. Without such analysis, the EIS fails to “foster informed decisionmaking” as required by NEPA. … BLM may not defer wholesale such analysis to the leasing stage. To defer consideration would obviate the need for assessment of any environmental impact that also might arise in a site-specific EA.
Id. at page 35 (internal citations omitted).
Regarding the fifth claim, the court concluded:
EPA based its use of the 100-year time horizon on a political agreement between nations rather than on science. … BLM’s unexplained decision to use the 100-year time horizon, when other more appropriate time horizons remained available, qualifies as arbitrary and capricious under these circumstances. BLM’s unexplained decision to use the 100-year time horizon further fails to satisfy NEPA’s purpose of “foster[ing] informed decision-making.”
BLM’s decision to note alternate GWP figures in the Miles City FEIS further evidences its awareness that the evolving nature of the science regarding carbon emissions. BLM’s failure to acknowledge this changing science in the Buffalo FEIS, however, constituted an additional arbitrary decision that undermined the accuracy and integrity of the GWP analysis.
Id. at pages 40-41 (internal citations omitted).
The court rejected the plaintiffs’ other claims.
As for remedies, the court recognized that “the deficiencies identified in the Buffalo RMP and Miles City RMP must be remedied through the preparation of a supplemental EIS for each RMP.” Id. at page 49. However, the court found “it appropriate under the circumstances to seek guidance from the parties as to the nature and scope of the appropriate remedies to address the NEPA violations identified in this order.” Id. Thus, the court directed the parties to confer in good faith to attempt to reach agreement as to remedies, and if the parties cannot reach agreement, they must submit additional briefing regarding remedies within 60 days.
[NOTE: This decision is on appeal.]