NEPA indeed poses a very big impediment to coal mining on public lands – Oil, Gas and Power

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On Friday, I issued a ruling invalidating BLM Resource Management Plans for non-compliance with NEPA. My caption was “NEPA is always going to pose a barrier to leasing public land for fossil fuel extraction”. I didn’t realize how prescient I was because later on Friday Judge Brian Morris – the same judge who struck down the RMPs – went further and reinstated the moratorium on renting public lands for mining coal that was set up by then-Secretary Jewell in 2016.

Once again, Judge Morris found the NEPA analysis of the DOI inadequate. When Secretary Zinke ended the moratorium in 2017, litigation ensued, and in 2019 the Court ruled that the Zinke order was subject to NEPA. In response, the DOI conducted an environmental assessment and issued a finding of no significant impact with respect to the Zinke Order.

However, the EA only reviewed four specific leases directly affected by the original moratorium. Further, he assumed that the moratorium would have been lifted after three years, even in the absence of the Zinke order. Judge Morris was not happy.

The EA did not take the “hard look” required by NEPA when it comes to restarting the federal coal leasing program. Under NEPA, the “no action” alternative describes the basic conditions. These conditions reflect the “status quo” against which the impacts of the proposed action and its alternatives are to be measured. BLM mis-drafted its NEPA analysis to end the coal lease moratorium on leases granted during the estimated PEIS timeframe. BLM’s attempt to reduce the potential environmental impacts of lifting the moratorium, by failing to consider a potential alternative that provided a baseline for an indefinite moratorium, is proving arbitrary and capricious. (Emphasis added.)

And in case there was any lingering doubt as to whether the Zinke ordinance was in fact likely to have a significant impact on the environment, Judge Morris noted that:

BLM had pending lease applications encompassing at least 1.8 billion tons of federal coal that would be mined from 28 mines in nine states at the time of the Zinke order. BLM’s own analysis indicates that the cumulative greenhouse gas emissions from coal lease applications that were suspended under the Jewell order would amount to more than one billion tonnes/year.

It’s time to list the DOI’s handling of the Zinke Order as one more example of an administration that cared more about posting its press release on Twitter than providing a solid legal basis for the actions it took. took.

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