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JUDICIAL: Includes NEPA

In WildEarth Guardians v. Bernhardt, No. 19-cv-001920-RBJ 2019 WL 5853870 (D. Colo. Nov. 8, 2019) the court considered whether the Office of Surface Mining Reclamation and Enforcement (OSM) violated the National Environmental Policy Act (NEPA) by recommending that the Secretary of Interior approve a mining plan authorizing the mining of federally owned coal on public lands in a part of the North Fork Valley known as the Sunset Roadless Area. The plaintiffs alleged three NEPA violations of OSM’s recommendation of the mining plan and the accompanying record of decision (ROD): (1) that OSM failed to consider an alternative to the proposed action that would require the mining company to “flare” methane emissions that were expected to occur as a result of the proposed mining; (2) that OSM did not take a hard look at the cumulative impacts on climate change; and (3) that OSM did not take a hard look at the direct impacts to water resources. OSM based its ROD and recommendation of the proposed project on a NEPA analysis conducted by the United States Forest Service (USFS) that concluded in a Supplemental and Final Environmental Impact Statement (SFEIS) that mining could be allowed in the Sunset Roadless Area.

In considering the plaintiffs’ first allegation, the court determined that OSM did not appropriately consider methane flaring as an alternative action in its ROD. The court found that OSM failed to appropriately consider methane flaring by adopting USFS’s NEPA analysis which only stated that consideration of methane flaring should be saved for a later date. Because OSM’s ROD did not address methane flaring, the court found that the agency had violated NEPA. With regard to the plaintiff’s second claim that OSM failed to consider the cumulative impacts of the proposed action on climate change, the court concluded that the agency did not act arbitrarily because the plaintiffs failed to raise this argument at the appropriate stage. Although the plaintiffs submitted a comment when USFS was drafting the SFEIS, the comment did not ask the agency to alter its analysis of the action’s cumulative impacts on climate change. According to the court, because the plaintiffs did not raise the cumulative impacts argument then, they could not later raise it during litigation. Finally, the court concluded that OSM violated NEPA by failing to take a hard look at the direct impacts of the proposed project on water resources. According to the court, the administrative record revealed that while OSM was reviewing USFS’s NEPA analysis, it discovered new information that contradicted USFS’s conclusion that mining in the Sunset Roadless Area would not affect perennial springs. Because OSM decided to ignore the new information, the court concluded that the agency violated NEPA.

Given its findings, the court concluded that that the appropriate remedy was to remand the ROD back to OSM for further consideration of the methane flaring alternative and the impacts of the proposed action on water resources. Additionally, the court has enjoined OSM from taking any further action on the proposed project until the agency review is complete.