Wildearth Guardians v. U.S. Bureau of Land Management ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILDEARTH GUARDIANS et al., )
)
Plaintiff, )
)
v. ) Civil Case No. 1:11-cv-148l (RJL)
)
BUREAU OF LAND MANAGEMENT, )
)
Federal Defendant )
)
)
)
STATE OF WYOMING, et al., ) F I L E D
> MAR 3 1 2014
)
Defendant-Intervenors
C|erk, U.S. District & Bankruptc\_/
courts for the District of Co|umb\a
47»~
MEMoRANDoM oP1N1oN
Mar¢h§ 2014 [## 38, 41, 431
Plaintiffs WildEarth Guardians, Defenders of Wildlife, and the Sierra Club
(collectively, "plaintiffs") brought suit against defendant United States Bureau of Land
Management ("BLM") in connection with BLM’s decision to lease two coal tracts in
Wyoming’s PoWder River Basin ("PRB")-the Belle Ayr North ("BAN") and Caballo
West ("CW") tracts.l Plaintiffs claim that BLM violated the National Environmental
Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4335, and the Federal Land Policy
Management Act ("FLPMA"), 43 U.S.C. §§ 1701-1784, because the agency failed to
l Following initiation of this action, the state of Wyoming, Alpha Wyoming Land Company,
LLC, and Peabody Energy Company intervened as party defendants (collectively, "defendant-
intervenors").
adequately consider the impacts on air quality and climate change resulting from the two
leases before deciding to authorize those leases. Before the Court are plaintiffs’ Motion
for Summary Judgment, defendant’s Cross-Motion for Summary Judgment, and
defendant-intervenors’ Cross-Motion for Summary Judgment.z Upon consideration of
the pleadings, record, and relevant law, plaintiffs’ motion is DENIED, defendant’s
motion is GRANTED, and defendant-intervenors’ motion is GRANTED.
BACKGROUND
I. Statutory and Regulatory Framework
This case concerns the leasing of public lands for coal mining. The Mineral
Leasing Act ("MLA"), 30 U.S.C. § 181 et seq., authorizes the Secretary of the interior to
lease publicly-owned lands for coal mining through a competitive bidding process. 30
U.S.C. § 20l(a)(l). Pursuant to the MLA’S implementing regulations, BLM may conduct
competitive lease sales under one of two processes-competitive leasing based on
regional leasing levels, or leasing-by-application ("LBA"). See 43 C.F.R. pt. 3420.
Under the LBA process, which was used in the instant case, an applicant identifies and
proposes specific tracts of public land for leasing. See 43 C.F.R. subpt. 3425.
2 See Pls.’ Mot. for Summ. J. and Mem. of P. & A. in Supp. [Dkt. # 38] ("Pls.’ Mem."); Federal
Def.’s Cross-Mot. for Summ. J. and Combined Mem. of Law in Supp. [Dkt. # 43] ("Def.’s
Mem."); Def.-Intervenors’ Cross-Mot. for Summ. J. and Mem. of P. & A. in Supp. [Dkt. # 4l]
("Def.-Intervenors’ Mem."); see also Reply in Supp. of Pls.’ Mot. for Summ. J. and Response in
Opp’n to Def.’s and Intervenors’ Cross-Mots. for Summ. J. [Dkt. # 48] ("Pls.’ Reply"); Federal
Def.’s Reply Brief in Supp. of its Cross-Mot. for Summ. J. [Dkt. # 52] ("Def.’s Reply"); Def.-
Intervenors’ Reply Mem. in Supp. of their Cross-Mot. for Summ. J. [Dkt. # 5l] ("Def.-
Intervenors’ Reply").
procedural injury: an agency’s failure to prepare a statutorily required environmental
impact statement before taking action with potential adverse consequences to the
environment."); Pls.’ Mem. at 8. When conducting a standing inquiry for a plaintiff
claiming a procedural injury, "the courts relax-while not wholly eliminating-the issues
of imminence and redressability[.]" Ctr. for Law and Ea'uc. v. Dep ’t of Ea’uc., 396 F.3d
ll52, 1157 (D.C. Cir. 2005); see also Lujan, 504 U.S. at 572 n.7. 7 That is, plaintiffs here
need not show that the alleged environmental harms resulting from BLM’s authorization
of the leases are imminent, or about to occur. See ia'. Nor need they show that the
preparation of an adequate EIS will necessarily protect their rights. See NB ex rel.
Peacock, 682 F.3d at 86 ("[A] ‘plaintiff who alleges a deprivation of a procedural
protection to which he is entitled never has to prove that if he had received the procedure
333
the substantive result would have been altered. (quoting Sugar Cane Growers Coop. of
Fla. v. Veneman, 289 F.3d 89, 94 (D.C. Cir. 20()2))).
On the other hand, however, the injury in fact and causation requirements of
standing are not similarly relaxed in the procedural injury context. See Ctr. for Law and
Ea’uc., 396 F.3d at 1157; Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009) ("the
requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be
removed by statute"); Fla. Aua'ubon Soc j), 94 F.3d at 669 (requiring showing of
causation "ensure[s] that NEPA cannot foster a procedural right ‘in the air"’; failing to
7 "[O]ne living adjacent to the site for proposed construction of a federally licensed dam has
standing to challenge the licensing agency’s failure to prepare an environmental impact
statement, even though he cannot establish with any certainty that the statement will cause the
license to be withheld or altered, and even though the dam will not be completed for many
years." Lujan, 504 U.S. at 572 n.7.
ll
"require that a[n] [EIS] plaintiff show that its particularized injury resulted from the
government action at issue would effectively void the particularized injury requirement").
Accordingly, to establish standing, plaintiffs here must show that they have a concrete
interest that is affected by the alleged procedural deprivation. See Fla. Audubon S0c ’y,
94 F.3d at 664-65; see also Summers, 555 U.S. at 496 ("[D]eprivation of a procedural
right without some concrete interest that is affected by the deprivation-a procedural
right in vacuo~is insufficient to create Article IIl standing.").g
In this case, as in WestAntelope I, plaintiffs allege that the FEIS failed to
adequately consider two categories of environmental impacts: (l) impacts to local air
quality in the PRB area resulting from coal mining activity on the BAN and CW lease
tracts, and (2) impacts on climate change of GHG emissions resulting from both coal
mining operations on the lease tracts and the subsequent burning of that mined coal to
generate electricity. Pls.’ Mem. at 22, 30; see WestAntelope 1, 880 F. Supp. 2d at 83.
And plaintiffs argue that they have standing to challenge the sufficiency of the FEIS’s
consideration of both categories of impacts. While much ink has been spilled by the
parties on the extent of plaintiffs’ standing, our Circuit Court’s decision in West Am‘elope
11 squarely controls this issue and dictates that plaintiffs here do, in fact, have standing to
argue that the FEIS failed to adequately address both categories of impacts.
8 A plaintiff may bring a procedural injury claim pursuant to a "citizen suit" provision in the
applicable statute. See, e.g., Lujan, 504 U.S. at 571-72. In cases involving statutes without such
provisions, however_such as NEPA_a plaintiff may bring a claim under the APA instead, as
plaintiffs do here. See Fla. Audubon Soc ’y, 94 F.3d at 665.
12
A. Plaintiffs Have Standing to Challenge Impacts of BLM’s Leasing
Decisi0n on Local Air Quality
Plaintiffs first allege that BLM’s FEIS failed to adequately address the impacts of
the leasing decisions on local air quality. To establish standing to raise this claim,
plaintiffs allege that BLM’s authorization of the BAN and CW leases will cause harm to
the aesthetic and recreational interests of their members in the PRB area as a result of
impacts to air quality from coal mining on the lease tracts. Compl. 111 16, 79. I agree-
and neither defendant nor defendant-intervenors dispute-that plaintiffs have standing on
this ground, see Def.’s Mem. at 10; Def.-Intervenors’ Mem. at 10, and our Circuit Court’s
analysis in WestAntelope 11 confirms this conclusion.
First, plaintiffs have shown injury in fact because their alleged procedural injury-
the allegedly deficient FEIS-is tied to their members’ concrete aesthetic and
recreational interests. See Wesz‘Antelope II, 738 F.3d at 305. Environmental interests,
such as the aesthetic and recreational interests of people who use the areas in question,
are cognizable interests for standing purposes, and damage to them can constitute injury
in fact. See Sz``erra Club v. Morton, 405 U.S. 727, 734 (1972); Friends of the Earth, Inc.
v. Laia'law Envtl. Servs., Inc., 528 U.S. 167, 183 (2000) ("environmental plaintiffs
adequately allege injury in fact when they aver that they use the affected area and are
persons for whom the aesthetic and recreational values of the area will be lessened by the
challenged activity" (internal quotation marks and citation omitted)). Here, coal mining
activity on the two lease tracts will generate ozone precursors and PM]@, and ozone and
PM]O are air pollutants regulated under the Clean Air Act, 42 U.S.C. § 7401 et seq.,
13
through applicable Nationa1 Ambient Air Quality Standards ("NAAQS"). Comp1. 1111 41-
46; P1s.’ Mem. at 9. Further, plaintiffs have submitted a declaration from a member who
uses areas near the BAN and CW lease tracts and has concrete plans to return, stating that
viewing these air pollutants diminishes his aesthetic and recreational enjoyment. See
Pls.’ Mem. at 9-1(); Decl. of Jeremy Nichols [Dkt. # 38-5], at 1111 5-8, 10-15; see Lujan,
504 U.S. at 564 (environmenta1 plaintiff must show concrete plans to visit affected area
in the future in order to show injury in fact). Thus, plaintiffs have shown that some of
their members will be injured by the increase in pollution generated by coal mining on
the BAN and CW tracts.
Next, plaintiffs can show causation because BLM concedes that development of
the two lease tracts will result in increased emissions of certain air pollutants. AR 1713,
1684. To show causation in this procedural injury context, plaintiffs must show two
causal links: one between the allegedly deficient EIS and BLM’s leasing decision, and
one between that leasing decision and p1aintiffs’ particularized injury. See WestAntelope
II, 738 F.3d at 306 (citing Fla. Aua’ubon S0c ’y, 94 F.3d at 668). The first link is easily
found here because plaintiffs need only "show that the procedural step was connected to
the substantive result," Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (citation
omitted), not that but for the alleged procedural deficiency BLM would have reached a
different substantive result, see West Am‘elope II, 738 F.3d at 306. As to the second link,
plaintiffs must "demonstrate a causal connection between the agency action and the
alleged injury," City ofDania Beach, Fla. v. FAA, 485 F.3d 1181, 1186 (D.C. Cir. 2007),
and plaintiffs have done so here "because the local pollution that causes their members’
14
aesthetic and recreational injuries follows inexorably from the decision to authorize
leasing" on the BAN and CW tracts. See West Antelope II, 738 F.3d at 306.
Finally, plaintiffs meet the low threshold for showing redressability in a
procedural injury action because all that is required is "some possibility that the requested
relief will prompt the injury-causing party to reconsider the decision that allegedly
harmed the litigant." Massachusetts v. EPA, 549 U.S. at 518; see also West Antelope II,
738 F.3d at 306 ("Vacatur of the BLM order would redress the Appellants’ members’
injuries because, if the BLM is required to adequately consider each environmental
concem, it could change its mind about authorizing the lease offering."). Therefore,
plaintiffs have standing to challenge the alleged deficiencies in the FEIS’s consideration
of local air quality impacts based on their members’ aesthetic and recreational injuries
caused by local pollution in areas near the BAN and CW lease tracts. See West Antelope
II, 738 F.3d a_t 306.
B. Plaintiffs Have Standing to Challenge Impacts of BLM’s Leasing
Decision on Climate Change
Plaintiffs also allege that BLM’s FEIS failed to adequately address the impacts of
the leasing decisions on climate change. To establish standing to raise this claim,
plaintiffs allege that BLM’s authorization of the BAN and CW leases will cause harm to
the aesthetic, recreational, and economic interests of their members due to climate
change. According to plaintiffs, GHG emissions from both mining operations and the
future combustion of the mined coal to generate electricity will "exacerbate climate
change" by contributing to sea level rise in New Jersey and Florida and deleterious
15
ecosystem changes in the Western United States. Pls.’ Mem. at l2-l7; Decl. of Michael
C. MacCracken [Dkt. #38-4], at 1111 13, 23, 37, 38, 4l.
Plaintiffs advance two arguments to establish their standing with respect to BLM’s
consideration of climate change impacts. First, relying on our Circuit Court’s prior
decisions in Centerfor Biologz``cal Dz``versily v. U.S. Department of the Im‘erior, 563 F.3d
466 (D.C. Cir. 2009) and Sz'erra Club v. Adams, 578 F.Zd 389 (D.C. Cir. 1978), they
argue for what might be called a form of "derivative" standing. That is, because
plaintiffs undisputedly have standing to challenge the adequacy of the FEIS with regard
to its analysis of local air quality impacts (as discussed above), they contend that, by
extension, they also have standing to challenge any other alleged inadequacies in the
FEIS_including its analysis of climate change impacts-because all of the alleged
inadequacies are part of the same NEPA claim. See Pls.’ Mem. at ll-l2; Pls.’ Reply at
2-4. Second, relying in large part on the declaration of climate scientist Dr. Michael
MacCracken, plaintiffs argue that their alleged climate change related injuries provide an
independent basis for standing under the traditional three-part standing inquiry. Pls.’
Mem. at 12-20. Fortunately, however, I need not navigate the troubled waters of the
"derivative" standing issue, nor need I decide whether plaintiffs have established a
separate injury in fact caused by climate change, because our Circuit Court’s discussion
of this issue in Wesz‘ Antelope 11 controls my analysis and makes clear that plaintiffs here
do, in fact, have standing to challenge the FEIS’s consideration of climate change
impacts on a procedural injury theory.
16
In West Antelope II, the same conservation organizations that are plaintiffs in this
case appealed the District Court’s grant of summary judgment in favor of def``endants,
including its ruling that the plaintiffs did not have standing to argue that BLM’s FEIS
failed to adequately address the impact of the leasing decision on global climate change.
On appeal, our Circuit Court agreed that the appellant conservation organizations did not
have standing under the three-part standing inquiry based on the effects of global climate
change. WestAntelope II, 738 F.?)d at 307. Notwithstanding that conclusion, however,
the Court went on to hold that appellants’ injury in fact resulting from local pollution
sufficed to give them standing to challenge each of the alleged deficiencies in the FEIS,
including the FEIS’s allegedly inadequate analysis of the impacts of the leasing decisions
on global climate change, "because each [alleged inadequacy] constitutes a procedural
injury connected to their members’ recreational and aesthetic injuries: Their members’
injuries are caused by the allegedly unlawful ROD and would be redressed by vacatur of
the ROD on the basis of any of the procedural defects identified in the FEIS." Ia’. at 308;
see also id. at 307 ("The Appellants’ aesthetic injury follows from an inadequate FEIS
whether or not the inadequacy concerns the same environmental issue that causes their
injury. If we vacate the BLM order, their injury will be redressed regardless whether the
FEIS’s specific flaw relates to local or global environmental impacts; either way, the
remedy is ‘limited to the inadequacy’~here, a deficient FEIS_‘that produced the injury
in fact that the plaintiff has established."’ (citation omitted)).9
9 In reaching this holding, our Circuit Court declined to rely on its prior decision in Adarns-in
which it held that where plaintiffs had established standing to challenge the adequacy of an EIS
17
So too here. Plaintiffs in the instant case, just like appellants in Wesl Antelope II,
have established standing on a procedural injury theory to challenge BLM’s analysis of
local air quality impacts, based on the harm to plaintiffs’ members’ concrete aesthetic and
recreational interests caused by local pollution that follows from the leasing decisions.
See ia’. at 306. And since our Circuit Court expressly declined to adopt a requirement
"that the specific type of pollution causing the Appellants’ aesthetic injury-here, local
pollution-be the same type that [plaintiffs allege] was inadequately considered in the
FEIS," _z'a’. at 307, then plaintiffs here also "may challenge each of the alleged
inadequacies in the FEIS" because "[t]heir members’ injuries are caused by the allegedly
unlawful ROD and would be redressed by vacatur of the ROD on the basis of any of the
procedural defects identified in the FEIS," see id. at 308. Accordingly, plaintiffs also
have standing to challenge the alleged deficiencies in BLM’s FElS relating to its
consideration of climate change impacts,
II. The Merits
In assessing the merits of plaintiffs’ NEPA and FLPMA claims, this Court must
apply the APA’s arbitrary and capricious standard of review. WestAntelope II, 738 F.3d
at 308; 5 U.S.C. § 706(2)(A). In the specific context of an agency’s preparation of an
EIS pursuant to NEPA, our Circuit Court has described this deferential standard as a
"rule of reason" standard. See Citizens Against Burlz``ngton, Inc. v. Busey, 938 F.2d l90,
on at least one ground, they could also raise other inadequacies in the EIS based on "the ‘public
interest’ in requiring government officials to discharge faithfully their statutory duties under
NEPA," Aa’ams, 578 F.2d at 392_and expressed "no opinion" on the continuing validity of the
"public interest" rationale in light of intervening Supreme Court precedent. West Antelope II,
738 F.3d at 307-08.
18
195~96 (D.C. Cir. l99l). If the agency’s decision is "fully informed and well-considered,
it is entitled to judicial deference and a reviewing court should not substitute its own
policy judgment." Transmission Access P0licy Stua’y Grp. v. FERC, 225 F.3d 667, 736
(D.C. Cir. 2000) (internal quotation marks and citation omitted). Put differently, the
Court’s role "is not to ‘flyspeck an agency’s environmental analysis, looking for any
deficiency no matter how minor."’ West Antelope II, 738 F.3d at 308 (quoting Nevada v.
Dep ’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006)). Instead, it is "simply to ensure that
the agency has adequately considered and disclosed the environmental impact of its
actions and that its decision is not arbitrary or capricious," ia’. (citations and quotation
marks omitted)_that is, to ensure that the agency took the required "‘hard look’ at the
environmental effects of its proposed action," Theoa’ore Roosevelt Conservation P ’shz'p v.
Sczlczzar, 661 F.3d 66, 75 (D.C.Cir.201l). See also New York v. NRC, 681 F.3d 47l, 476
(D.C. Cir. 2012) ("NEPA is an ‘essentially procedural’ statute intended to ensure ‘fully
informed and well-considered’ decisionmaking, but not necessarily the best decision."
(quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def Council, Inc., 435 U.S.
5l9, 558 (1978))).
Plaintiffs in this case have raised several challenges to the sufficiency of the FEIS,
but plaintiffs’ complaint, at bottom, is that BLM did not analyze certain issues in the
manner or level of detail plaintiffs would have preferred, and therefore this Court should
vacate the FEIS. Unfortunately for plaintiffs, the applicable standard of review neither
contemplates nor countenances that type of judicial second-guessing of agency
decisionmaking, and therefore I find that plaintiffs’ claims are without merit.
19
A. Plaintiffs’ NEPA Claims Are Without Merit
Under NEPA, an EIS must examine the proposed project’s direct, indirect, and
cumulative impacts, as well as alternatives to the proposed project. 42 U.S.C. §
4332(2)(€); 40 C.F.R. §§ 1502.16, 1508.25. Direct impacts "are caused by the action
and occur at the same time and place," 40 C.F.R. § l508.8(a), whereas indirect impacts
"are caused by the action and are later in time or farther removed in distance, but are still
reasonably foreseeable," 40 C.F.R. § l508.8(b). And in doing a cumulative impact
analysis, the agency "must assess the impact the proposed project will have in
conjunction with other projects in the same and surrounding areas . . . and must include
past, present, and reasonably foreseeable future actions of any agency or person."
Theodore Roosevelt Conservatz``on P’shlp v. Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010);
40 C.F.R. § 1508.7.
In this case, plaintiffs allege that the FElS prepared by BLM violated NEPA for
three reasons. First, they claim that BLM failed to take the required "hard look" at the
local air quality impacts from coal mining on the leases. Compl. 1111 75-76, 79-82; Pls.’
Mem. at 22-30. Second, they claim that BLM failed to take a "hard look" at the climate
change impacts of GHG emissions, including COZ, resulting from lease development~
i.e. both the mining of the coal itself, and the eventual combustion of the mined coal.
Compl. 1111 75-77; Pls.’ Mem. at 30-39. And third, plaintiffs claim that BLM failed to
consider "reasonable alternatives" to prevent or minimize GHG emissions, to include
mitigation measures. Compl. 111 78-82; Pls.’ Mem. at 40-42. Addressing each in turn, l
20
Before acting on a lease app1ication, BLM must conduct an environmental review
pursuant to NEPA. Under NEPA, all federal agencies are required to prepare an
Environmental Impact Statement ("EIS") for any proposed "major Federal actions
significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(€);
40 C.F.R. § 1502.3; see also Grand Canyon Trust v. FAA, 290 F.3d 339, 340 (D.C. Cir.
2002). NEPA’s requirement to prepare an EIS serves two purposes: it ensures that the
agency "will have available, and will carefully consider, detailed information concerning
significant environmental impacts" before making a decision on the proposed action, and
it "guarantees that the relevant information will be made available to the larger audience
that may also play a role in both the decisionmaking process and the implementation of
that decision." Robertson v. Methow Valley Citizens Councz'l, 490 U.S. 332, 349 (l989).
The EIS must analyze the direct, indirect, and cumulative impacts of the proposed action
on the environment, 40 C.F.R. §§ l502.16, 1508.7, as well as "alternatives to the
proposed action," 42 U.S.C. § 4332(2)(C)(iii). To satisfy NEPA, the agency must take a
"hard look" at the environmental consequences of a proposed action before proceeding,
but the statute does "not require agencies to elevate environmental concerns over other
appropriate considerations." Balt. Gas & Elec. Co. v. Natural Res. Def Council, Inc.,
462 U.S. 87, 97 (1983). NEPA thus mandates a process, not a particular substantive
result. See Robertson, 490 U.S. at 350.
BLM is also subject to the statutory regime of FLPMA. Under that statute, BLM
is responsible for managing the public lands. 43 U.S.C. § 1732. For a given area, BLM
first develops a "land use plan," or Resource Management Plan ("RMP"), which sets
3
conclude for the following reasons that BLM did, indeed, consider all of the relevant
factors and did not commit a clear error of judgment.
1. BLM Adequately Discussed and Analyzed Impacts on L0cal Air
Quality
Plaintiffs first claim that BLM failed to take the required "hard look" at the local
air quality impacts from coal mining on the leases in two respects-the direct and
cumulative impacts to air quality of ozone emissions from coal mining, and the direct
impacts of particulate matter (PM]@) emissions. Compl. 111 75-76, 79-82; Pls.’ Mem. at
22-30.
a) BLM Adequately Discussed and Analyzed Ozone Impacts
on Air Quality
Plaintiffs argue that BLM inadequately discussed and analyzed the direct and
cumulative impacts of ozone emissions on local air quality. Compl. ll 58; Pls.’ Mem. at
22-25. Plaintiffs emphasize that the FElS did not include a specific analysis of the direct
impacts of ozone that will result from lease development, and they claim that the agency
"simply provided a table of ozone levels from 2001 through 2008 and did no more." Pls.’
Mem. at 23. Further, in an effort to steer this Court away from reaching the same
conclusion as my colleague did in West Antelope 1 that BLM’s ozone analysis complied
with NEPA, plaintiffs argue that the court’s discussion of ozone in that case was flawed
because its reliance on BLM’s finding that the area was in "attainment" for ozone
NAAQS improperly conflated the agency’s obligation to analyze the "affected
environment" with its separate obligation to analyze the "environmental consequences"
21
of the proposed action. Pls.’ Mem. at 23. Compare 40 C.F.R. § 1502.15 (affected
environment), with 40 C.F.R. § 1502.16 (environmental consequences). Plaintiffs’
arguments, however, are not only unpersuasive, but they fail to withstand scrutiny under
our Circuit Court’s analysis of this very issue of ozone impacts in its West Antelope 11
opinion.
In the FEIS for the South Gillette area lease tracts, including the BAN and CW
tracts, BLM discussed ozone in multiple places, see AR l506, 1682-84, 1713-18; Def.’s
Mot at 22-23, and the agency’s analysis demonstrates the required "hard look." First, the
FEIS explained that ground level ozone ("03") is a pollutant formed when nitrogen
oxides ("NOX") emissions and volatile organic compounds react with sunlight. AR l684.
ln other words, mining operations produce NOX emissions but not ozone itself, see AR
l7l6, and thus BLM noted that it was including ozone in its discussion of NOX emissions
because NOX is one of the main precursors to the formation of ground-level ozone, AR
l7l3. The FEIS then identified background concentrations of ozone at 132 p/m3 for past
years 2005-2008 and found that they were within the "attainment" status of 147 u/m3 set
by the applicable NAAQS. AR 1683.]0 Next, the FEIS looked to the future and, based
on long-term modeling, estimated that "currently projected mine activities will be in
compliance with the annual NOX [air quality standards]" for the life spans of both the
Belle Ayr and Caballo mines. AR 1717-18; Def.’s Mem. at 23. Moreover, BLM
identified and discussed the environmental consequences of NOX emissions, as well as
10 While the EPA has established NAAQS for ozone and nitrogen dioxide ("NO;"), a type of
NOX, there is no NAAQS standard for NOX. See West Antelope II, 738 F.3d at 31 l.
22
the health risks associated with the inhalation of both ground-level ozone and NOX. AR
1719-20.
Not surprisingly, plaintiffs take issue with this mode of analysis, arguing that
BLM’s discussion of the ozone precursor, NOX, was inadequate because NOX "cannot
serve as a proxy for ozone concentration" since there are no established NAAQS for NOX
and it is measured in different units. Pls.’ Mem. at 24. But plaintiffs’ argument that
"analysis of NOX emissions is not equivalent to an analysis of ozone emissions," Pls.’
Mem. at 24, falls well short of showing that the agency failed to consider relevant factors
and make appropriate disclosures. Indeed, plaintiffs’ argument on this point is
specifically foreclosed by our Circuit Court’s decision in West Antelope II, which
affirmed the adequacy of BLM’s ozone analysis for nearby lease tracts using precisely
the same method of analysis. See WestAntelope 1I, 738 F.3d at 311-12 (confirming "the
appropriateness of the BLM’S use of NOX as a proxy for ozone" and observing, "[i]t 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 NOZ
emissions suffice.").
Indeed, I think BLM’s decision to address ozone in its analysis of NOX emissions,
rather than devote an exclusive section of the FEIS to ozone, was particularly reasonable
in light of the fact that mining activities emit NOX, not ozone itself-which is only
formed subsequently when NOX reacts with other compounds in the presence of sunlight,
making ozone forecasting imprecise. See Def.’s Mem. at 24. Though plaintiffs suggest
23
that BLM could have considered ozone modeling performed by the Westem Regional Air
Partnership, see Pls.’ Reply at 19-20, such a complaint is a far cry from showing that the
agency failed to consider ozone at all, and under the "rule of reason" standard, such
detailed second-guessing of an agency’s choices is not the proper role of this Court. See
West Antelope I, 880 F. Supp. 2d at 88 ("‘It is of course always possible to explore a
subject more deeply and to discuss it more thoroughly,’ but ‘[t]he line-drawing decisions
397
necessitated by this fact of life are vested in the agencies, not the courts. (quoting Coal.
on Sensible Transp., Inc. v. Dole, 826 F.2d 6(), 66 (D.C.Cir.l987))).
In sum, BLM made the reasonable choice to address ozone in its NOX discussions
because NOX can serve as a "proxy" for ozone, see AR 1506, 1682, 1684, and it is hard
to see why further analysis would be necessary given that the FEIS demonstrated that
past ozone concentrations were within the "attainment" status of the applicable NAAQS
and modeling projected future compliance with air quality standards. Much like Judge
Kollar-Kotelly in West Antelope 1 (and as affirmed by our Circuit Court), I see no reason
to require BLM to perform a more detailed analysis of ozone.
b) BLM Adequately Discussed and Analyzed Particulate
Matter Impacts on Air Quality
Next, plaintiffs contend that BLM also failed to take the requisite "hard look" at
the direct air quality impacts of PM\O emissions from development of the BAN and CW
tracts. Compl. 11 79; Pls.’ Mem. at 26-30. Plaintiffs emphasize that the FEIS does not
consider whether the PM]O emission levels from mining activities would approach or
24
exceed the 24-hour NAAQS standard, or the extent to which these emissions would
degrade short-term air quality. Id.
Again, however, the record reflects that BLM performed adequate analysis of
PMlo direct impacts on air quality. In the FEIS, the agency discussed the sources of PM\O
pollution, the applicable air quality standards (both 24-hour and annual), natural
background concentrations of PMlo in the region, and the health impacts of PM,@. AR
1681-1692; Def.’s Reply at 9. In particular, BLM examined historic concentrations of
PMlo in the area and noted that both 24-hour and annual concentrations were below
applicable standards and thus in "attainment" status; found that no exceedances of either
the 24-hour or annual standards had occurred at the Belle Ayr or Caballo mines; and
disclosed exceedances that had occurred at other mines outside the South Gillette area in
the years 2001-2007. Def.’s Mem. at 25-26; AR 1500-0l, 1685, 1691-92, 2290-91.
Regarding future estimates, BLM explained that the rate of mining operations at the BAN
and CW tracts would be similar to those at the existing mines, AR l685, and, using long-
term modeling based on that assumption, predicted that no exceedances of the annual
PMlo standard would occur at either the BAN or CW tracts. Def.’s Mem. at 26; AR
15()0-01, 1691-92, 2290-92. Based on this past data and future estimates, BLM
concluded that PMm emissions resulting from the two leases could be expected to remain
within applicable NAAQS standards. AR l693, 1702.
The crux of plaintiffs’ complaint, then, is that BLM used annual modeling to
predict short-term (24-hour) levels of PM;O, and therefore BLM’s analysis adequately
considered cumulative impacts but not direct (i.e. 24-hour) impacts. Pls.’ Mem. at 27.
25
But the agency candidly disclosed that no appropriate model exists to accurately predict
24-hour impacts, and thus it instead relied on available modeling data showing
compliance with applicable air quality standards on an annual basis. AR l69l; Def.’s
Reply at 9-10.]' In light of past data, expected mining activity on the two leases, and
available modeling estimates, it was reasonable for BLM to conclude that PM,O
concentrations could be expected not to exceed 24-hour or annual air quality standards.
Plaintiffs essentially demand a better, more detailed model for 24-hour PM]O emissions,
but this is a far cry from showing that BLM utterly failed to consider a "relevant factor."
See Moz‘or Vehicle Mfrs. Ass ’rz, 463 U.S. at 43. Accordingly, BLM’s analysis complies
with the "rule of reason" in light of the information available to the agency, and is
sufficiently thorough to comply with NEPA.
2. BLM Adequately Discussed and Analyzed Climate Change
Impacts
Plaintiffs next argue that BLM failed to take a "hard look" at the climate change
impacts of GHG emissions, including COZ, resulting from lease development_i.e. both
the mining of the coal itself, and the eventual combustion of the mined coal. Compl. 111
75-77; Pls.’ Mem. at 30-39. Specifically, plaintiffs allege that BLM’s analysis was
inadequate in three ways. First, they contend that BLM failed to analyze direct impacts
to climate from COZ emissions from coal mining on the two leases. Second, they contend
that BLM failed to analyze cumulative impacts to climate resulting from coal mining on
ll In the FEIS, BLM disclosed that short-term, 24-hour modeling did predict some exceedances
for the larger PRB area, but also noted that such short-term modeling is not reliable because it
over-predicts 24-hour concentrations of PM]@. AR 1966, 1691-92.
26
the two leases in combination with coal mining on ten other federal leases in the PRB.
And third, they contend that BLM failed to analyze the indirect impacts to climate
resulting from the combustion of coal mined from the two leases in combination with that
mined from the ten other federal leases in the PRB. See Pls.’ Mem. at 30. I disagree and
find that BLM’s analysis adequately considered climate change and the reasonably
foreseeable impacts of its leasing decisions; the level of specificity plaintiffs would prefer
in BLM’s analysis is neither possible based on current science, nor required by law.
BLM’s FEIS examined climate change in two places, Chapter 3 ("Affected
Environment and Environmental Consequences") and Chapter 4 ("Cumulative
Environmental Consequences"). BLM discussed the role of GHG emissions in climate
change and the greenhouse effect. AR l920. Moreover, BLM acknowledged that GHGs
will be released during coal mining operations, provided annual data on GHG emissions
at the South Gillette area mines in 2007, and then estimated expected annual GHG
emissions that would likely result from coal mining operations at those mines with the
new lease tracts. AR 1922. Specifically, BLM estimated that coal mining at the South
Gillette area mines, including the four proposed leases (which include the two leases
challenged here) would collectively emit l.l82 million metric tons of COZ annually,
representing 1.7 percent of the projected 2020 state-wide emissions for Wyoming, see
AR l922; Pls.’ Mem. at 32, and that such South Gillette area coal mining, in combination
with coal mining at other PRB mines and with other pending leases, would emit 4.229
million metric tons annually, see AR 2042. The EIS then acknowledged that although
"use of the coal after it is mined is . . . not determined at the time of leasing . . . almost all
27
of the coal that is currently being mined in the Wyoming PRB is being used by coal-fired
power plants to generate electricity," AR 2032, and thus went on to discuss emissions and
by-products of coal combustion, AR 2046, as well as estimate the COZ emissions
resulting from coal combustion from all PRB mines for the year 2006 at 7l6.9 million
metric tons, or 33.6 percent of all estimated COZ emissions from coal combustion in the
United States. AR 2041. Finally, BLM discussed studies that recognized global
warming and potential impacts of climate change in the Western United States, AR 2034-
38, but specifically noted that "there are uncertainties regarding how climate change may
affect different regions," AR 2()36.
Plaintiffs take issue with this level of detail in BLM’s analysis, arguing that the
FEIS failed to sufficiently analyze the climate impacts of GHG emissions from mining
operations on the leases and subsequent combustion of the mined coal. See Pls.’ Mem. at
30-39. In plaintiffs’ view, "estimates [of GHG emissions] alone without an analysis of
the impacts to climate resulting from these emission levels do not comply with NEPA’s
hard look requirement." Pls.’ Mem. at 32. But it is precisely because current climate
science is uncertain (and does not allow for specific linkage between particular GHG
emissions and particular climate impacts) that evaluating GHG emissions as a percentage
of state-wide and nation-wide emissions, as BLM did here, is a permissible and adequate
approach. See West Antelope II, 738 F.3d at 309; see also Bczrnes v. U.S. Dep ’t of
Transp., 655 F.3d ll24, 1139 (9th Cir. 201 l) (because "the effect of [GHGs] on climate
is a global problem[,] a discussion in terms of percentages is therefore adequate for
[GHG] effects," and the agency’s analysis of GHGs need not be specific to the locale).
28
Indeed, as our Circuit Court held in West Antelope II, "[b]ecause 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." West
Antelope II, 738 F.3d at 309; see also z'a’. (citing draft guidance from the Council on
Environmental Quality that notes "it is not currently useful for the NEPA analysis to
attempt to link specific climatological changes, or the environmental impacts thereof, to
the particular project or emissions, as such direct linkage is difficult to isolate and to
understand. The estimated level of GHG emissions can serve as a reasonable proxy for
assessing potential climate change impacts . . ."). Accordingly, the FEIS’s discussion of
climate impacts was adequate here.
3. BLM Considered a Reasonable Range of Alternatives
In addition to requiring a "hard look" at environmental impacts, NEPA also
requires federal agencies to include in an EIS "a detailed statement. .. [of] alternatives to
the proposed action. 42 U.S.C. § 4332(2)(C)(iii); Transmissz``on Access Policy Stua’y
Grp., 225 F.3d at 735. The agency "bears the responsibility for deciding which
alternatives to consider in an [EIS]," and when reviewing the agency’s consideration of
alternatives, this Court must, again, apply the "rule of reason" standard. Citz'zens Against
Burlz``nglon, ]nc., 938 F.2d at 195; z'a’. ("this rule of reason governs both which alternatives
the agency must- discuss, and the extent to which it must discuss them" (internal quotation
marks and citation omitted)). Here, plaintiffs urge this Court to find BLM’s FEIS
deficient because it failed to consider the alternatives that plaintiffs proposed to address
GHG emissions and climate change_requiring emissions capture and sequestration,
29
more efficient mine hauling trucks, and carbon offsets for the leases. Pls.’ Mem. at 40-
41; AR 4255-56. Unfortunately for plaintiffs, however, I find that under the "rule of
reason" standard BLM considered a reasonable range alternatives and was not required to
specifically consider plaintiffs’ proposed measures.
NEPA requires only that an agency consider alternatives that are feasible or
reasonable. Citz``zens Against Burlington, Inc., 938 F.Zd at 195 (citing 40 C.F.R. §§
l502.l4(a)-(c), l508.25(b)(2)). The agency is responsible for deciding which alternatives
to consider in an EIS, and its selection of them, as well as the extent to which it discusses
them, need only be reasonable in relation to the objective or purpose of the planned
action. See id. at 195-96. ln other words, an agency’s consideration of alternatives is not
legally inadequate "simply because the agency failed to include every altemative device
and thought conceivable by the mind of man." Vt. Yankee, 435 U.S. at 55 l.
In this case, BLM prepared an EIS in response to LBA applications it received. In
that context, BLM’s objective and purpose was to act upon the applications. See
Theodore Roosevelt Conservatz'on P ’shzp, 661 F.3d at 73-74. Its options were necessarily
limited to: (l) holding competitive sealed-bid lease sales for the tracts as applied for, (2)
holding such sales for modified tracts, or (3) rejecting the applications and not offering
the tracts for lease. AR l568; see also 43 C.F.R. §§ 3425.l-9, 3425.1-8. And in making
a decision on the applications, BLM had to account for "the needs and goals of the parties
involved in the application" as well as "the views of Congress . . . [as expressed] in the
agency’s statutory authorization to act, as well as in other congressional directives."
Citz``zens Agaz``nst Burlz``ngton, Inc., 938 F.2d at l96. Here, BLM considered the objectives
3()
forth objectives for managing resources on those lands. Ia’. § l712(a); Def.’s Mem. at 4.
BLM’s land use planning must "observe the principles of multiple use and sustained
yield." 43 U.S.C. § 1712(0)(1); see also id. § 1732(a). Multiple use means "the
management of the public lands and their various resource values so that they are utilized
in the combination that will best meet the present and future needs of the American
people," and "a combination of balanced and diverse resource uses that takes into account
the long-term needs of future generations for renewable and nonrenewable resources,
including, but not limited to, recreation, . . . minerals, . . . and natural scenic, scientific
and historical values . . ." Ia'. § l702(c). Sustained yield means "achievement and
maintenance in perpetuity of a high-level annual or regular periodic output of the various
renewable resources of the public lands consistent with multiple use." Ia’. § l702(h).
Further, BLM’s land use plans must "provide for compliance with applicable pollution
control laws, including State and Federal air, water, noise, or other pollution standards or
implementation plans." Ia’. § l7l2(c)(8). Speciflc resource management actions by
BLM, such as leasing the coal tracts at issue in this case, must conform to the applicable
RMP. 43 C.F.R. § l6lO.5-3(a).
II. Factual and Procedural Background
The Powder River Basin ("PRB"), located in Wyoming and Montana, is the single
largest source of coal in the United States, se``e Administrative Record ("AR") 9378,
l l 148, and over 90 percent of its coal deposits are owned by the federal government, AR
93 89. Plaintiffs WildEarth Guardians, Defenders of Wildlife, and the Sierra Club, are
of the applicants to secure "access to a continuing supply of low sulfur compliance coal
which would be mined and sold to power plants for the purpose of electric power
generation." AR 1569. The agency also considered its own role of administering the
federal coal leasing program under the MLA, which "encourages the development of
domestic coal reserves and reduction of the U.S. dependence on foreign sources of
energy," as well as considered the national goals to "add energy supplies from diverse
sources" per the National Energy Policy, "meet the nation’s future energy needs" by
continued coal extraction, and help "provide a stable supply of power to meet increasing
demand without a potentially significant increase in power costs." AR 1568-70.
In light of these factors, BLM’s consideration of altematives in the FEIS,
including a "No Action" option, under which the tracts would not be leased, AR 1580-
1622, was sufficient under the "rule of reason" standard. First, BLM was not required to
consider plaintiffs’ proposals simply because they raised them in public comments on the
FEIS. Put simply, an agency need not adjust course for every comment received at any
stage in the process of taking an action, especially where, as here, those comments were
submitted late in the proceedings at the FEIS stage. See Def.’s Mem. at 31-32; West
Antelope II, 738 F.3d at 310-l l (rejecting plaintiffs’ argument that BLM failed to analyze
a reasonable range of alternatives to address GHG emissions and climate change when
BLM did not consider a list of alternatives proposed by plaintiffs, noting that plaintiffs’
submission of such alternatives at the FEIS stage (rather than the scoping or draft EIS
stage) was "sandbagging," and "the last-ditch, kitchen-sink nature of WildEarth’s
suggestions bears on the extent to which the BLM was required to address them"); see
31
also Vt. Yankee, 435 U.S. at 553-54 ("administrative proceedings should not be a game or
a forum to engage in unjustified obstructionism . . ."). To the contrary, the agency is
responsible for deciding which alternatives to consider in an EIS. Citz``zens Against
Burlington, Inc., 938 F.Zd at 195-96.
Second, and more importantly, BLM considered a full range of alternatives,
including an option not to lease the tracts at all, and in doing so evaluated the potential
environmental impacts of each. Plaintiffs’ specific proposals about measures to reduce
GHG emissions once mining of the tracts commences, therefore, do not represent some
broad category of "reasonable but unexamined alternatives" the FElS should have
addressed. See Friends of Soulheast ’s Future v. Morrison, 153 F.3d 1059, 1065 (9th Cir.
1998). Instead, they are more aptly categorized as mitigation measures relevant to the
later mining and combustion of coal and associated permitting by other agencies, rather
than to the leasing itself. See WestAntelope II, 738 F.3d at 31 l. Indeed, NEPA does not
require BLM to include in its FEIS "a detailed explanation of specific measures which
will be employed to mitigate the adverse impacts of a proposed action." Robertson, 490
U.S. at 353 (internal quotation marks and citation omitted). In sum, l find that BLM’s
consideration of alternatives was adequate under the "rule of reason."
32
B. Plaintiffs’ FLPMA Claims Are With0ut Merit
Finally, plaintiffs claim that BLM violated FLPMA by failing to ensure that its
leasing decisions would result in compliance with federal air quality standards. See
Compl. 1111 83-92. However, plaintiffs point to no legal authority supporting their
assertion of a legal "duty" BLM owes to ensure compliance, and therefore these claims
must also fail.
FLPMA requires the Secretary of the Interior to "manage the public lands . . . in
accordance with the land use plans," 43 U.S.C. § 1732(a), and land use plans must
"provide for compliance with applicable pollution control laws, including State and
Federal air, water, noise, or other pollution standards or implementation plans," z'd. §
1712(0)(8). Pointing to the Buffalo RMP, the land use plan that covers the PRB,
plaintiffs argue that BLM has violated its legal duties under FLPMA by (l) failing to do
"the requisite analysis" to determine whether its lease authorizations will comply with
ozone NAAQS, and (2) authorizing the leases while "knowing" that PM,O emissions from
mining the lease tracts "will result in exceedances of the 24-hour PM]O NAAQS." Pls.’
Mem. at 43-44; Compl. 111 89, 91. I disagree.
Not only are these claims "duplicative" of plaintiffs’ NEPA claims, see West
Amelope 1, 880 F. Supp. 2d at 94, but plaintiffs supply no legal authority for their
assertion that BLM has a "legal obligation to impose concrete emission-reduction
measures" on the leases, Pls.’ Mem. at 44, or a "substantive duty under FLPMA to follow
the dictates of the RMP, rather than passing its responsibility on" to the lessee and the
Wyoming state regulatory body, P1s.’ Mem. at 45. To the contrary-and as my
33
colleague noted in West Antelope 1 regarding an identical claim by these plaintiffs-
"neither the FLPMA nor the implementing regulations required BLM to analyze whether
and to what degree the leasing of the . . . tracts would comply with national ozone, PMlo,
and NO; standards." West Antelope I at 94. Instead, applicable regulations require only
that BLM draft land use authorizations, including leases, such that they "[r]equire
compliance with air and water quality standards established pursuant to applicable
Federal or State law. 43 C.F.R. § 2920.7(b)(3). BLM has done exactly that by including
clauses in the BAN and CW leases requiring compliance with air and water quality
standards. AR 2l49. According1y, plaintiffs’ FLPMA claims are without merit.
CONCLUSION
Thus, for all of the foregoing reasons, the Court DENIES plaintiffs’ Motion for
Summary Judgment, GRANTS defendant’s Cross-Motion for Summary Judgment, and
GRANTS defendant-intervenors’ Cross-Motion for Summary Judgment. An Order
consistent with this decision accompanies this Memorandum Opinion.
RIC `` ON
United States District Judge
34
non-profit conservation organizations with members located across the nation, including
members who live, work, and recreate in the PRB. Compl. [Dkt. # 1] 111 13-15.
In 2004 and 2006, coal mining companies operating existing mines in the PRB
applied to defendant BLM under the LBA regulations to lease the two coal tracts at issue
in this case_the Belle Ayr North ("BAN") and Caballo West ("CW") tracts. On July 6,
2004, RAG Coal West, Inc. (predecessor to defendant-intervenor Alpha Wyoming Land
Company, LLC) filed an application to lease the BAN tract, which includes an estimated
221.7 million tons of minable coal. AR 3, 14. On March l5, 2006, Caballo Coal
Company (predecessor to BTU Westem Resources, Ino., which in turn is predecessor to
defendant-intervenor Peabody Energy Company) applied to lease the CW tract, which
includes an estimated 130.2 million tons of minable coal. AR 49, 58.
Pursuant to its obligations under NEPA, BLM published in the Federal Register a
notice of its intent to prepare an EIS analyzing four proposed coal leases in the South
Gillette area, including the BAN and CW tracts. See 72 Fed. Reg. 14,828 (Mar. 29,
2007). After publishing a draft EIS in October 2008 and accepting public comments,
BLM prepared a final EIS ("FEIS") in August 2009 that spanned more than 600 pages.
AR 3386, 2299-2489; see also 74 Fed. Reg. 41,430 (Aug. l7, 2009). The FEIS analyzed
three alternatives for the BAN and CW tracts: (l) competitive lease sales of the two tracts
as applied for; (2) a No Action alternative, in which the two tracts would not be leased
("Altemative l"); and (3) competitive lease sales of the two tracts as reconfigured by
BLM ("Alternative 2"). AR 1489-97; Compl. 1111 53-54. Plaintiffs submitted comments
on both the draft EIS and the FEIS, and proposed alternative measures that would
5
"reduce, eliminate, or mitigate" carbon dioxide ("CO;"), ozone, nitrogen dioxide
("NOQ"), and particulate matter ("PM]@") emissions, as well as adverse climate change
impacts, from the proposed leases. Pls.’ Mem. at 5; Compl. 11 55; AR 4035-53, 4125-27,
4111-20, 4245-67.
In July 2010, BLM approved two Records of Decision ("ROD") authorizing
competitive lease sales for the BAN and CW tracts. See Compl. 11 53; Pls.’ Mem. at 5;
Def.’s Mem. at 1. Plaintiffs filed an administrative Notice of Appeal and Petition for
Stay with the Interior Board of Land Appeals ("IBLA") in August 2010, challenging both
RODs, AR 10770-10835. The IBLA denied the Petition for Stay in October 2010. AR
11718-25. Before it could rule on the merits of plaintiffs’ challenge, however, plaintiffs
moved to voluntarily dismiss their appeals in June 2011, and the IBLA granted that
request in August 201 1. AR 11775-76, 11778-80. Meanwhile, BLM offered the BAN
tract for sale on July 13, 201 l, and BTU Western Resources, Inc. placed the winning bid.
Compl. 11 27; Def.’s Mem. at 8. BLM then offered the CW tract for sale on August 17,
2011, and Alpha Wyoming Land Company, LLC won the bid. Def.’s Mem. at 8-9.
Plaintiffs filed a complaint in this Court on August 16, 2011, bringing one count
under NEPA and one count under FLPMA. Plaintiffs, who allege that their members
have recreational, aesthetic, and economic interests in the public lands of the PRB,
Compl. 1111 13-15, claim that BLM violated NEPA by authorizing the leases of the BAN
and CW tracts without adequately considering the decisions’ impacts on air quality and
climate change, Compl. 1111 71-82. Specifically, plaintiffs claim that BLM’s FEIS was
legally inadequate because it failed to analyze the direct, indirect, and cumulative impacts
6
on air quality of ozone, PM]O, and NOZ emissions resulting from coal mining on the lease
tracts, Compl. 11 79, 3 as well as the direct, indirect, and cumulative effects on climate
change of greenhouse gas ("GHG") emissions, including COZ, resulting from lease
development, Compl. 1111 75-77. Plaintiffs also allege that BLM failed to sufficiently
consider mitigation measures and reasonable alternatives to minimize emissions. Compl.
1[11 78, 80-81. Finally, under FLPMA, plaintiffs claim that BLM’s authorization of the
leases failed to comply with federal air quality standards. Compl. 1111 83-92. Plaintiffs
therefore seek declaratory and injunctive relief, including vacatur of the FEIS and the two
RODs authorizing the leases. Compl. at 22-23.
STANDARD OF REVIEW
Challenges to agency action are reviewed under the Administrative Procedure Act
("APA"), 5 U.S.C. § 551 et seq. Under the APA, a court must set aside agency action if
it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law." 5 U.S.C. § 706(2)(A). This standard of review is "highly deferential and presumes
the validity of agency action." Neighborhood Assistance Corp. of Am. v. CFPB, 907 F.
Supp. 2d ll2, 125 (D.D.C. 2012) (citing AT&T Corp. v. FCC, 220 F.3d 607, 616 (D.C.
Cir. 2000)) (internal quotation marks omitted)). The court maynot "substitute its
judgment for that of the agency." Motor Vehz'cle Mfrs. Ass ’n of the U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Rather, the court will only set aside
3 Based on Judge Kollar-Kotelly’s ruling on a similar challenge in WildEarth Guardians v.
Salazar ("WestAnz‘elope 1"), 880 F. Supp. 2d 77, 90-91 (D.D.C. 2012), plaintiffs do not pursue
the allegation in their complaint that BLM failed to adequately analyze the impacts to air quality
of NO; emissions from the leases. See Pls.’ Mem. at 2 n.l.
7
agency action as arbitrary and capricious if the agency committed a "clear error of
judgment," such as when "the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise." Ia’. So long as the agency "examined the relevant data and
articulated a satisfactory explanation for its action including a rational connection
between the facts found and the choice made," its action will be upheld. Mz'lk Ina’us.
Founa’. v. Glz``ckmcm, 132 F.3d 1467, 1476 (D.C. Cir. 1998) (internal quotations, citations,
and modifications omitted).‘l
ANALYSIS
In WildEarth Guardians v. Salazar ("West Am‘elope I"), 880 F. Supp. 2d 77(D.D.C. 2012), my colleague, Judge Kollar-Kotelly, considered a nearly identical
challenge by these same plaintiffss to BLM’s decision to lease two different coal tracts
also located in Wyoming’s PRB. Judge Kollar-Kotelly granted summary judgment in
favor of the government defendants, and recently_while the parties’ cross-motions for
summary judgment were pending in the instant action_our Circuit Court affirmed that
4 When reviewing final agency action under the APA, the summary judgment standard of Fed. R.
Civ. P. 56 "does not apply because of the limited role of a court in reviewing the administrative
record." Citizensfor Responsibz'lity and Ethz``cs in Washington v, SEC, 916 F. Supp. 2d 141, 144
(D.D.C. 2013). The district court "deterrnine[s] whether or not as a matter of law the evidence in
the administrative record permitted the agency to make the decision it did." Ia'. at 145 (internal
quotation marks and citation omitted).
5 In WestAntelope I, the plaintiffs were the three conservation organization plaintiffs in the
instant action, as well as the Powder River Basin Resource Council following consolidation of
two suits.
decision. Wz'ldEarz‘h Guardz'ans v. Jewell ("WestAntelope Il"), 738 F.3d 298 (D.C. Cir.
2013). In view of the similarities, both factual and legal, between that case and this one,
our Circuit Court’s West Antelope 11 opinion provides instructive analysis-and,
regarding certain issues, binding authority-that help guide my decision here.
The gravamen of the plaintiffs’ complaint in each case is that BLM failed to
adequately address impacts to air quality and climate change resulting from the respective
coal leases, in violation of NEPA and FLPMA. Here, as in WestAntelope I, the parties
dispute plaintiffs’ standing to raise certain of their challenges to the sufficiency of the
FEIS. Accordingly, I will first address plaintiffs’ standing, and for the reasons explained
below I find that they have standing to raise all of their challenges to the FEIS. Next,
turning to the merits, l conclude that BLM complied with NEPA and FLPMA when
preparing the FEIS and authorizing the two leases.
I. Standing
The Constitution limits the role of federal courts to resolving cases and
controversies. U.S. Const. art. III, § 2; Cir. for Bz'ological Dz``versz``ty v. U.S. Dep ’t of the
Im‘erz``or, 563 F.3d 466, 475 (D.C. Cir. 2009). Accordingly, plaintiffs must show they
have standing to bring their claims as a "predicate to any exercise of [this Court’s]
jurisdiction." Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. l996). In
order to satisfy the "irreducible constitutional minimum" of Article III standing, plaintiffs
must satisfy three requirements:
First, the plaintiff must have suffered an injury in fact_an invasion of a
legally protected interest which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical. Second, there must be
9
a causal connection between the injury and the conduct complained of_the
injury has to be fairly traceable to the challenged action of the defendant,
and not the result of the independent action of some third party not before
the court. Third, it must be likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.
Um``tecz’ Staz‘es v. Wz``na’sor, 133 S. Ct. 2675, 2685-86 (2013) (quoting Lujcm v. Defenders of
Wz'ldlz``f``e, 504 U.S. 555, 560-61 (l992) (quotations, citations, and modifications omitted)).
As the party invoking federal jurisdiction, plaintiffs "bear[] the burden of establishing the
factual predicates of jurisdiction by a preponderance of the evidence." Erby v. Um'tecz’
States, 424 F. Supp. 2d 18(), 182 (D.D.C. 2006) (citing, inter alia, Lujan, 504 U.S. at
561). And for purposes of considering whether plaintiffs have Article III standing, this
Court "must assume arguendo the merits of [their] legal claim[s]." Parker v. Distrz``ct of
Columbz``a, 478 F.3d 370, 377 (D.C. Cir. 20()7); NB ex rel. Peacock v. Disz‘rict of
Columbz'a, 682 F.3d 77, 81 (D.C. Cir. 2012).
In this case, plaintiffs allege a procedural (rather than substantive) injury.6 In fact,
their complaint sets out the "archetypal procedural injury" in arguing that BLM failed to
take a "hard look" at the environmental impacts of the leases and prepare a legally
adequate EIS under NEPA. See Naz"l Parks Conservation Ass ’n v. Manson, 414 F.3d l,
5 (D.C. Cir. 2005) ("The hypothetical in footnote 7 of Lujan represents the archetypal
6 Plaintiffs are non-profit conservation organizations with members located in the PRB and
across the nation. Compl. 1111 l3-l5. "[A]n association has standing to bring suit on behalf of its
members when: (a) its members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in the lawsuit."
Hunt v, Wash. State Apple Aa’ver. Comm ’n, 432 U.S. 333, 343 (1977). None of the parties
dispute the latter two elements of associational standing; the only issue is whether the members
of WildEarth Guardians, Defenders of Wildlife, and the Sierra Club would otherwise have
standing to raise all of the legal claims alleged in plaintiffs’ c0mplaint.
10