Wildearth Guardians v. Salazar , 880 F. Supp. 2d 77 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILDEARTH GUARDIANS, et al.,
Plaintiffs,
v.
KEN SALAZAR, Secretary, U.S. Department Civil Action No. 10-01174 (CKK)
of the Interior, et al., Civil Action No. 11-00037 (CKK)
Defendants, and
ANTELOPE COAL LLC, et al.,
Defendant-Intervenors.
MEMORANDUM OPINION
(July 30, 2012)
Plaintiffs1 bring these consolidated actions challenging the United States Bureau of Land
Management’s decision to authorize the leasing of certain public lands in northeastern Wyoming
for coal mining operations. Before the Court is a series of cross-motions for summary judgment.
Upon careful consideration of the parties’ submissions, the relevant authorities, and the record as
a whole, Plaintiffs’ [70, 71] Motions for Summary Judgment shall be DENIED and Defendants’
[74, 75, 79] Cross-Motions for Summary Judgment shall be GRANTED.2
1
A glossary of terms appears immediately below.
2
The Court finds that holding oral argument would not be of assistance in rendering a decision.
See LCvR 7(f). Furthermore, while the Court bases its decision on the entire record, its
consideration has focused on the parties’ memoranda and the joint appendix. See ECF Nos. [70-
1, 71, 74, 75, 76, 79-1, 84, 86, 89, 90, 91, 92, 94, 96]. When citing to memoranda or other
papers, the Court shall simply identify the party and docket number and provide a brief
document descriptor (e.g., “WildEarth Pls.’ [71] Mem.”).
I. GLOSSARY
BLM United States Bureau of Land Management
Defendants Federal Defendants and Intervenors
EIS Environmental Impact Statement
EPA United States Environmental Protection Agency
ESA Endangered Species Act
Federal Defendants BLM and FWS
FLPMA Federal Land Policy and Management Act
FWS United States Fish and Wildlife Service
GHG Greenhouse gas
Antelope Coal LLC, National Mining Association,
Intervenors
and State of Wyoming
NAAQS National Ambient Air Quality Standard
NEPA National Environmental Policy Act
NO2 Nitrogen dioxide
NOx Nitrogen oxide
Plaintiffs WildEarth Plaintiffs and PRBRC
PM10 Particulate matter
PRB Powder River Basin
PRBRC Powder River Basin Resource Council
ROD Record of Decision
WAII Tracts West Antelope II tracts
WildEarth Guardians, Defenders of Wildlife, and
WildEarth Plaintiffs
Sierra Club
II. BACKGROUND
The Court assumes familiarity with its prior opinions in this action, which set forth the
factual and procedural background of the case. See WildEarth Guardians v. Salazar, 783 F.
Supp. 2d 61 (D.D.C. 2011); WildEarth Guardians v. Salazar, 272 F.R.D. 4 (D.D.C 2010).
* * *
2
Under the Mineral Leasing Act of 1920, BLM is permitted to lease public lands for coal
mining operations upon conducting a competitive bidding process. See 30 U.S.C. §§ 181,
201(a)(1). On April 6, 2005, Antelope Coal LLC filed an application with BLM requesting that
certain public lands adjacent to its pre-existing mining operations in Campbell and Converse
Counties, Wyoming be offered up for competitive lease sale to interested parties. See J.A. 168-
98, 926. The new lands, referred to herein as the WAII tracts, consist of approximately 4,109
acres containing approximately 429.7 million tons of in-place federal coal. See J.A. 926.
On October 17, 2006, after conferring with the State of Wyoming and the Powder River
Regional Coal Team, BLM published a notice of its intention to prepare an EIS for leasing the
WAII tracts. See NOTICE OF INTENT (NOI) TO PREPARE AN ENVIRONMENTAL IMPACT
STATEMENT (EIS), 71 Fed. Reg. 61064 (Oct. 17, 2006). On November 1, 2006, BLM held a
“scoping” meeting to preliminarily identify the issues to be addressed in the agency’s
environmental analysis. See J.A. 8-9. On February 8, 2008, EPA published BLM’s draft EIS
and solicited public comment. See WEEKLY RECEIPT OF ENVIRONMENTAL IMPACT STATEMENTS,
73 Fed. Reg. 7555 (Feb. 8, 2008). On March 24, 2008, BLM held another public hearing to
receive comments on the draft EIS. See J.A. 1637, 1683. During the sixty-day comment period,
three individuals testified and fourteen individuals and organizations submitted written
comments. See J.A. 899, 1637, 1683.
BLM then prepared a final EIS spanning over 700 pages and published a notice of its
availability on January 23, 2009. See J.A. 901-1637; NOTICE OF AVAILABILITY OF FINAL
ENVIRONMENTAL IMPACT STATEMENT, 74 Fed. Reg. 4228 (Jan. 23, 2009). In the final EIS, BLM
reprinted and responded to the comments received on the draft EIS. See J.A. 1545-1637. The
final EIS also included a biological assessment designed to ascertain whether leasing the WAII
3
tracts for coal mining operations would negatively affect listed species or critical habitat. See
J.A. 1512-43. FWS, as the relevant consulting agency, concurred in writing with BLM’s
underlying determination. See J.A. 33-34.
Subsequently, BLM held a thirty-day public comment period on the final EIS and
published written responses to the comments received. See J.A. 1638-69. On March 25, 2010,
in a 44-page ROD, BLM formally decided to divide the lands into two tracts and to offer each
tract for lease at separate, competitive sealed-bid sales. See J.A. 1670-1714. On April 1, 2010,
BLM published a notice of the availability of the ROD. See NOTICE OF AVAILABILITY OF THE
RECORD OF DECISION, 74 Fed. Reg. 16502 (Apr. 1, 2010).
III. LEGAL STANDARD
Under the “arbitrary or capricious” standard, which the parties agree applies to the
Court’s review, the reviewing court must “set aside agency action, findings, and conclusions
found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). The party challenging the agency action bears the burden of proof.
Abington Crest Nursing & Rehab. Ctr. v. Sebelius, 575 F.3d 717, 722 (D.C. Cir. 2009) (citing
City of Olmsted Falls v. FAA, 292 F.3d 261, 271 (D.C. Cir. 2002)). In assessing the merits of the
plaintiff’s challenge, the district court begins with the presumption that the agency’s action was
valid. Grid Radio v. FCC, 278 F.3d 1314, 1322 (D.C. Cir.), cert. denied, 537 U.S. 815 (2002).
Agency action must generally be affirmed on the grounds originally stated by the agency;
a reviewing court may not attempt to supply “a reasoned basis for the agency’s action that the
agency itself has not given.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). Nor may counsel’s “post hoc rationalizations,” offered
for the first time on judicial review, substitute for an agency’s obligation to articulate a valid
4
rationale in the first instance. El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. HHS, 396
F.3d 1265, 1276 (D.C. Cir. 2005). Consistent with these principles, judicial review is typically
confined to the administrative record before the agency at the time the decision was made. Envtl.
Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981).
In order to avoid a finding that the challenged agency action was arbitrary or capricious,
the “agency must [have] examine[d] the relevant data and articulate[d] a satisfactory explanation
for its action.” PPL Wallingford Energy LLC v. FERC, 419 F.3d 1194, 1198 (D.C. Cir. 2005)
(quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43) (internal quotation marks omitted). In
articulating the reason for its action, the agency “must have provided a ‘rational connection
between the facts found and the choice made.’” Int’l Union, United Mine Workers of Am. v.
Mine Safety & Health Admin., 626 F.3d 84, 90 (D.C. Cir. 2010) (quoting Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 43). An agency’s decision may be said to be arbitrary or capricious if any of
the following apply: (i) its explanation runs counter to the evidence before the agency or is so
implausible that it could not be ascribed to a difference of view or the product of agency
expertise; (ii) the agency entirely failed to consider an important aspect of the problem or issue;
(iii) the agency relied on factors which Congress did not intend the agency to consider; or (iv)
the decision otherwise constitutes a clear error of judgment. Motor Vehicle Mfrs. Ass’n, 463
U.S. at 43; accord Jicarilla Apache Nation v. DOI, 613 F.3d 1112, 1118 (D.C. Cir. 2010).
This standard of review is highly deferential to the agency; a court need not find that the
agency’s decision is “the only reasonable one, or even that it is the result [the court] would have
reached had the question arisen in the first instance in judicial proceedings.” Am. Paper Inst.,
Inc. v. Am. Elec. Power Serv. Corp., 461 U.S. 402, 422 (1983). That is, it is not enough for the
agency decision to be incorrect; so long as it has some rational basis, the court is bound to
5
uphold the decision. Hosp. of Univ. of Pa. v. Sebelius, 634 F. Supp. 2d 9, 13 (D.D.C. 2009)
(citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). At bottom,
the reviewing court is not entitled to substitute its judgment for that of the agency. Overton
Park, 401 U.S. at 416.
In evaluating agency action under the “arbitrary or capricious” standard, the reviewing
court must take “due account . . . of the rule of prejudicial error.” 5 U.S.C. § 706. Just as the
burden of establishing that the agency action is arbitrary or capricious rests with the party
challenging agency action, so too must that party establish that the errors ascribed were
prejudicial. Jicarilla Apache Nation, 613 F.3d at 1121 (citing PDK Labs. Inc. v. DEA, 362 F.3d
786, 799 (D.C. Cir. 2004)). The question of whether an error was prejudicial is necessarily
contextual, and courts must proceed with a case-specific application based upon an examination
of the entire record. Jicarilla Apache Nation, 613 F.3d at 1121. However, where the party
challenging agency action fails to show that the agency’s error may have affected the outcome of
the proceedings below, the error is not prejudicial, and it would be senseless to vacate and
remand for further proceedings. Id.IV. DISCUSSION
The Court’s discussion here proceeds in two stages. The Court first addresses Plaintiffs’
standing and defines the scope of this action. See infra Part IV.A. Thereafter, the Court
addresses the merits of Plaintiffs’ remaining claims. See infra Part IV.B-D.
A. Plaintiffs’ Standing and the Scope of this Action
“Article III of the Constitution limits the ‘judicial power’ of the United States to the
resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). “In order to establish the
6
existence of a case or controversy within the meaning of Article III, [a] party must meet certain
constitutional mimima,” including “the requirement that . . . it has standing to bring the action.”
Gettman v. DEA, 290 F.3d 430, 433 (D.C. Cir. 2002). The “irreducible constitutional minimum”
of standing requires: (1) an injury in fact; (2) causation; and (3) redressability. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Where, as here, a party’s standing is not
self-evident, the basis for standing must be set forth in the party’s opening brief, supported by
any necessary affidavits or other evidence. Sierra Club v. EPA, 292 F.3d 895, 900 (D.C. Cir.
2002). The district court must assume the merits of the plaintiff’s legal claim. Parker v. District
of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007), aff’d sub nom. District of Columbia v. Heller,
554 U.S. 570 (2008).
In this case, Plaintiffs’ overarching assertion that BLM failed to prepare an adequate EIS
before authorizing the leasing of the WAII tracts presents the sort of procedural injury that gives
rise to a somewhat relaxed standing inquiry.3 Cf. Nat’l Parks Conservation Ass’n v. Manson,
414 F.3d 1, 5 (D.C. Cir. 2005) (describing “an agency’s failure to prepare a statutorily required
environmental impact statement before taking action with potential adverse consequences to the
environment” as “the archetypal procedural injury”). A plaintiff with “a procedural right . . . can
assert that right without meeting all the normal standards for redressability and immediacy.”
Lujan, 504 U.S. at 573 n.7. In particular, a procedural-rights plaintiff “never has to prove that if
[it] had received the procedure the substantive result would have been altered. All that is
necessary is to show that the procedural step was connected to the substantive result.” Sugar
Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 94-95 (D.C. Cir. 2002).
3
Contrary to Defendants’ assertion, Plaintiffs identify procedural harm as a basis for their
standing in their opening briefs.
7
But while the normal standards of redressability and immediacy are relaxed in this
context, the requirements of injury in fact and causation are not. Ctr. for Law & Educ. v. Dep’t
of Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005). Because “injury in fact is a hard floor of Article
III jurisdiction that cannot be removed by statute,” Summers v. Earth Island Inst., 555 U.S. 488,
497 (2009), a plaintiff must always identify an “injury to [a] concrete, particularized interest,”
Ctr. for Law & Educ., 396 F.3d at 1157; 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 III standing.”). Furthermore, and more critically
for present purposes, a procedural-rights plaintiff must still show that the claimed injury is
“fairly traceable” to the defendant’s procedural breach. Allen v. Wright, 468 U.S. 737, 751
(1984). Specifically, the “plaintiff must show . . . that it is substantially probable that the
procedural breach will cause the essential injury to the plaintiff’s own interest.” Fla. Audubon
Soc. v. Bentsen, 94 F.3d 658, 665 (D.C. Cir. 1996) (en banc).
Plaintiffs’ claims in this case divide into two basic categories: (1) those relating to
climate change impacts that would allegedly result from the release of GHGs during coal mining
operations at the WAII tracts (and other proposed coal lease tracts in the PRB) or from the
eventual combustion of coal mined from those tracts; and (2) those unrelated to climate change
impacts. The Court finds that Plaintiffs have standing to raise only the latter category of claims.
1. Climate Change Impacts
Plaintiffs aver that their members have recreational, aesthetic, and economic interests in
the areas adjacent to the WAII tracts.4 It is by now well established that such interests can
support an injury in fact. See, e.g., Summers, 555 U.S. at 494 (“While generalized harm to . . .
4
One member also claims to have recreational and aesthetic interests in the “American West”
and the “Rocky Mountain region.” The Court’s analysis applies equally to those interests.
8
the environment will not alone support standing, if that harm in fact affects the recreational or
even the mere esthetic interests of the plaintiff, that will suffice.”); Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (“[E]nvironmental 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.”) (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). Nonetheless, a plaintiff
must still show that the alleged injuries to its aesthetic, recreational, and economic interests are
“fairly traceable” to the agency action at issue. Allen, 468 U.S. at 751. Specifically, “an
adequate causal chain must contain at least two links: one connecting the [] EIS to some
substantive government decision that may have been wrongly decided because of the lack of an
EIS and one connecting that substantive decision to the plaintiff’s particularized injury. * * *
The second link addresses what often proves the more critical causation question in this type of
case,” Fla. Audubon, 94 F.3d at 668, and it is here where Plaintiffs’ theory of standing falters.
On the subject of climate change impacts, WildEarth Plaintiffs contend that they have
standing because their members are concerned that the development of the WAII tracts will
result in climate change impacts that “will negatively impact their ability to enjoy these places,”
such as “greater drought conditions; increased invasive species and insect infestations; increased
fire frequency, severity, and extent; and a concordant reduction in biodiversity and sensitive
species.” WildEarth Pls.’ [70] Mem. at 7-8 (internal citations omitted) (citing Decl. of Jeremy
Nichols, ECF No. [71-1], ¶¶ 24-27, 35-37, 38, 40, 58; Decl. of Jonathan Proctor, ECF No. [71-
2], ¶¶ 7-9). In a similar vein, PRBRC claims that one of its members “believes” that climate
change “will exacerbate water production problems” near his ranch “by reducing available
snowpack that feeds springs and streams and increasing seasonal temperatures resulting in a
9
longer, more intense irrigation season.” PRBRC’s [70-1] Mem. at 5-6 (internal quotation marks
and citations omitted) (citing J.A. 2583-84 (Decl. of Dave Clarendon) ¶¶ 5-10, 12).
The fundamental problem with this theory of standing lies in the disconnect between
Plaintiffs’ recreational, aesthetic, and economic interests, which are uniformly local, and the
diffuse and unpredictable effects of GHG emissions. Other courts besides this one have noted
the difficulties that arise when a plaintiff claims that its localized interests will be affected by
agency action that supposedly contributes to GHG emissions. See, e.g., Amigos Bravos v. BLM,
816 F. Supp. 2d 1118, 1129 (D.N.M. 2011) (“[W]hile there may be a generally accepted
scientific consensus with regard to global climate change, there is not the same consensus with
regard to what the specific effects of climate change will be on individual geographic areas.”);
Sierra Club v. U.S. Def. Energy Support Ctr., Civil Action No. 01:11-cv-41, 2011 WL 3321296,
at *4 (E.D. Va. July 29, 2011) (“A reduction of greenhouse gas emissions in one area or from
one source has no effect on greenhouse gas levels that are specific to that area, and may even
have no effect on global greenhouse gas levels . . . .”) (citing PREVENTION OF SIGNIFICANT
DETERIORATION AND TITLE V GREENHOUSE GAS TAILORING RULE, 75 Fed. Reg. 31514, 31529
(June 3, 2010)). True, the mere fact that GHG emissions “inflict widespread harm” does not
present an “insuperable jurisdictional obstacle” to standing, Massachusetts v. EPA, 549 U.S. 497,
517 (2007), but a plaintiff must nonetheless present “evidence to suggest that [it is] adversely
affected by global climate change,” Coal. for Responsible Regulation, Inc. v. EPA, __ F.3d __,
2012 WL 2381955, at *36 (D.C. Cir. June 26, 2012) (per curiam). Because the environmental
impacts of GHG emissions are diffuse and unpredictable, a plaintiff in this kind of case will
often “have some difficulty” in establishing causation. Fla. Audubon, 94 F.3d at 666. However,
10
“that difficulty stems from the nature of the plaintiff’s claim, which is premised on an alleged
injury that is itself difficult to locate, not some flaw in the standard.” Id.
In this case, Plaintiffs have not shown that the GHG emissions that would allegedly result
from coal mining operations at the WAII tracts and other proposed coal lease tracts in the PRB,
or from the eventual combustion of coal mined from those tracts, yield a “demonstrable increase
in risk” to their recreational, aesthetic, and economic interests in the areas adjacent to the WAII
tracts. Id. at 665. Plaintiffs point to studies suggesting that GHG emissions may lead to global
or even broad regional climate change impacts, see, e.g., J.A. 1285-87, but those studies do not
establish a nexus between the anticipated GHG emissions from the leasing of WAII tracts and
“injuries alleged in the specific geographic area[s] of concern,” Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., 204 F.3d 149, 161 (4th Cir. 2000) (en banc) (internal quotation
marks and citation omitted). WildEarth Plaintiffs’ assertion that “greenhouse gases emitted
anywhere can exacerbate climate change everywhere” is no substitute for this showing.
WildEarth Pls.’ [89] Mem. at 6 (citing ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS
FOR GREENHOUSE GASES UNDER SECTION 202(A) OF THE CLEAN AIR ACT, 74 Fed. Reg. 66496,
66538 (Dec. 15, 2009); EPA’S DENIAL OF THE PETITIONS TO RECONSIDER THE ENDANGERMENT
AND CAUSE OR CONTRIBUTE FINDINGS FOR GREENHOUSE GASES UNDER SECTION 202(A) OF THE
CLEAN AIR ACT, 75 Fed. Reg. 49556, 49557 (Aug. 13, 2010)). Nor can Plaintiffs rely upon the
handful of assertions relating to causation by their members, see, e.g., J.A. 2583-84, because
those assertions are conclusory or are unaccompanied by sufficient information to permit the
inference that the members are both competent to provide such testimony and are relying on
facts that would admissible at trial. See FED. R. CIV. P. 56(c)(4) (“An affidavit or declaration . . .
must be made on personal knowledge, set out facts that would admissible in evidence, and show
11
that the affiant or declarant is competent to testify on the matters stated.”); Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 888 (1990) (“The object of this provision is not to replace conclusory
allegations of the complaint . . . with conclusory allegations of an affidavit.”); Evers v. Gen.
Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“[A]n affidavit must set forth specific facts in
order to have any probative value.”) (citations omitted); New York State Ophthalmological Soc.
v. Bowen, 854 F.2d 1379, 1391 (D.C. Cir. 1988) (concluding that a party cannot create a genuine
dispute of material fact by “offer[ing] only unsupported expert opinion”), cert. denied, 490 U.S.
1098 (1989).
Plaintiffs’ failure to bridge the evidentiary gap between their localized interests and the
diffuse and unpredictable effects of GHG emissions is particularly troubling because the
relationship between those two things in this case depends on the behavior of countless third
parties. See Fla. Audubon, 94 F.3d at 670 (“The Supreme Court has itself noted the
improbability of establishing the necessary likelihood of some result when that result depends on
predicting the acts of even a single ‘interest group’ who is unrepresented in the instant litigation,
especially when that group . . . is actually comprised of dozen of actors, each of whom must react
to other market or regulatory inputs.”) (citation omitted). For example, there is evidence that
even if the WAII tracts lay fallow, domestic and international consumers’ consumption behavior
would not be materially affected and the national energy portfolio would remain unchanged. See
J.A. 1678-79. WildEarth Plaintiffs respond, without any meaningful evidentiary support, that a
“basic economic principle” suggests that reduced supply would entail an increase in the price of
coal. WildEarth Pls.’ [89] Mem. at 7. But even assuming that the price of coal were to rise in
the absence of coal from the WAII tracts, Plaintiffs do not point to any competent evidence to
support their assertion that the price increase would be so significant that energy consumers
12
would substitute coal with energy sources with a “lesser or no carbon dioxide contribution,” id.,
let alone at a rate and in a manner that would help ameliorate the alleged climate change impacts
identified by Plaintiffs. And the market behavior of coal consumers is only one link in a long
chain of assumptions, suppositions, and predictive judgments required to connect Plaintiffs’
localized interests, the effects of global GHG emissions, and the leasing of the WAII tracts. The
causal chain proffered by Plaintiffs is ultimately too attenuated.5
In the final analysis, Plaintiffs have failed to show that the leasing of the WAII tracts will
lead to climate change impacts resulting in specific adverse consequences to their articulated
recreational, aesthetic, or economic interests in the discrete areas where they have concrete
future plans to recreate, work, etc. Accordingly, the Court concludes that Plaintiffs lack standing
to pursue their climate change claims in this case.
5
Cf. Ctr. for Biological Diversity v. DOI, 563 F.3d 466, 478-79 (D.C. Cir. 2009) (“In order to
reach the conclusion that Petitioners are injured because of Interior’s alleged failure to consider
the effects of climate change with respect to the Leasing Program, Petitioners must argue that:
adoption of the Leasing program will bring about drilling; drilling, in turn, will bring about more
oil; this oil will be consumed; the consumption of this oil will result in additional carbon dioxide
being dispersed into the air; this carbon dioxide will consequently cause climate change; this
climate change will adversely affect the animals and their habitat; therefore Petitioners are
injured by the adverse effects on the animals they enjoy.”); Fla. Audubon, 94 F.3d at 669-70
(“For the tax credit to pose a substantial probability of a demonstrably increased risk of
particularized environmental damage, the credit must prompt third-party fuel producers to
undertake the acquisition of production facilities for ETBE and begin to produce ETBE in such
quantities as to increase the demand for ethanol from which ETBE is derived. This increased
demand must then not simply displace existing markets for currently-produced ethanol, but in
fact increase demand for the agricultural products from which ethanol is made. Again, this
demand must not be filled by existing corn or sugar supplies, but instead spur new production of
these products by farmers, who must be shown to have increased production of these products at
least to some measurable extent because of the tax credit . . . . Moreover, any agricultural
pollution from this increased production must be demonstrably more damaging than the pollution
formerly caused by prior agricultural production or other prior use of land now cultivated
because of the ETBE tax credit.”); see also Amigos Bravos, 816 F. Supp. 2d at 1134-36; Sierra
Club, 2011 WL 3321296, at *5.
13
2. Non-Climate Change Impacts
Plaintiffs’ remaining claims are based on the non-climate change impacts that will
allegedly result from leasing the WAII tracts for coal mining operations. Defendants do not
dispute that Plaintiffs have standing to pursue these claims, and for good reason because these
claims rest on the contention that coal mining operations at the WAII tracts will lead to increased
air, water, and land pollution in the areas immediately adjacent to the WAII tracts—that is, in the
specific areas where Plaintiffs’ members recreate, and work.
For example, Plaintiffs allege that BLM’s failure to take full stock of the environmental
impacts of NO2 emissions during mining operations will lead to haze, smog, and dust clouds in
the areas immediately adjacent to the WAII tracts. It is uncontested that NO2 emissions
contribute to these localized physical phenomena. See J.A. 1047 (“Blasting that is done to
remove the material overlying the coal (the overburden) can result in emissions of several
products, including NO2 . . . . When this occurs, gaseous, orange-colored clouds may be formed
and they can drift or be blown off mine permit areas.”). Such physical phenomena would
directly affect Plaintiffs’ members’ enjoyment of these specific areas.
Considering the record as a whole, the Court finds that Plaintiffs have met their burden of
showing that they have standing to pursue their claims based on non-climate change impacts.
* * *
In sum, the Court finds that Plaintiffs have standing to pursue their claims unrelated to
climate change, but lack standing to pursue those claims relating to climate change impacts. The
Court confines its consideration of the merits accordingly. See Coal. for Responsible Regulation,
2012 WL 2381955, at *11 (“Absent a petitioner with standing to challenge EPA’s inclusion of
PFCs and SF6 in the ‘air pollution’ at issue, this court lacks jurisdiction to address the merits of
14
[the] contention.”); Fresno Mobile Radio, Inc. v. FCC, 165 F.3d 965, 971 n* (D.C. Cir. 1999)
(“[Petitioner] also contends that the agency failed to consider the interests of businesses owned
by women and members of minority groups . . . . Because [Petitioner] makes no showing,
however, that any of its members is owned by a woman or member of a minority group, it lacks
standing to raise this argument.”).
B. Plaintiffs’ Remaining NEPA Claims
NEPA requires an agency to “take a ‘hard look’ at the environmental effects of its
proposed action,” Theodore Roosevelt Conservation P’Ship v. Salazar, 661 F.3d 66, 75 (D.C.
Cir. 2011)—typically through the preparation of an EIS. See Found. on Econ. Trends v. Heckler,
756 F.2d 143, 146 (D.C. Cir. 1985) (“The major action-forcing provision of NEPA is the
requirement that all agencies of the Federal government prepare a detailed environmental
analysis for major Federal actions significantly affecting the quality of the human environment.”)
(quotation marks and citations omitted). In this regard, NEPA has twin aims. “First, it places
upon an agency the obligation to consider every significant aspect of the environmental impact
of a proposed action.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S.
87, 97 (1983) (quotation marks and citation omitted). “Second, it ensures that the agency will
inform the public that it has indeed considered environmental concerns in its decisionmaking
process.” Id. Ultimately, the statute is designed to “ensure fully informed and well-considered
decisionmaking, but not necessarily the best decision.” New York v. NRC, 681 F.3d 471, 476
(D.C. Cir. 2012) (quotation marks and citation omitted); see also Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 351 (1989) (“NEPA merely prohibits uninformed—rather than
unwise—agency action.”). Therefore, “[t]he focus of the ‘hard look’ doctrine is to ensure that
the agency has adequately considered and disclosed the environmental impact of its actions and
15
that its decision is not arbitrary or capricious.” Theodore Roosevelt Conservation, 661 F.3d at 75(quotation marks and citation omitted).
In this case, Plaintiffs claim that the final EIS prepared by BLM is inadequate for a
number of reasons. The Court addresses each reason in turn.
1. Ozone Emissions
WildEarth Plaintiffs first contend that BLM failed to analyze the impacts of ozone
emissions on local air quality. See, e.g., WildEarth Pls.’ [89] Mem. at 9 (“Plaintiffs’ complaint
about the lack of ozone analysis . . . stems from BLM’s complete failure to analyze ozone
emissions resulting from the proposed action, rather than from a concern with the adequacy of an
actual ozone analysis.”). This contention is belied by the record. In its final EIS, BLM
identified the 8-hour background concentration for ozone in the region adjacent to the WAII
tracts for the period from 2005 through 2007. See J.A. 1033. According to the data relied upon
by BLM, the background concentration for that time period was 136 µg/m3, below the NAAQS
of 157 µg/m3 that applied prior to May 2008 and below the 147 µg/m3 standard that applied after
May 2008. See J.A. 50, 1033. BLM therefore noted that the area is considered to be in
“attainment” status for ozone, see J.A. 1388, something that is conceded by WildEarth Plaintiffs,
see WildEarth Pls.’ [89] Mem. at 9 (recognizing that “Campbell County is in attainment with the
current ozone NAAQS”). Furthermore, BLM analyzed the effects of NOx emissions, an ozone
precursor, stating that although there are no anticipated point sources for NOx emissions at the
mine itself, NOx emissions are associated with tailpipe emissions from mining equipment and
from trains used to transport coal from the mine. See J.A. 1047-48; see also WildEarth Pls.’ [89]
Mem. at 9 (recognizing that NOx is an “ozone precursor”). Finally, BLM identified the potential
health risks associated with the inhalation of ground-level ozone, which include acute respiratory
16
problems, aggravated asthma, decreases in lung capacity, inflammation of lung tissue, and
increased susceptibility to respiratory illnesses. See J.A. 1048.
On this record, WildEarth Plaintiffs’ suggestion that the BLM completely failed to
analyze ozone emissions from the proposed action rings hollow. And although WildEarth
Plaintiffs disclaim any challenge to “the adequacy of [BLM’s] actual ozone analysis,” WildEarth
Pls.’ [89] Mem. at 9, the level of detail provided in the final EIS complies with the “rule of
reason” that guides this Court’s review, Transmission Access Policy Study Grp. v. FERC, 225
F.3d 667, 736 (D.C. Cir. 2000). “It is of course always possible to explore a subject more deeply
and to discuss it more thoroughly,” but “[t]he line-drawing decisions necessitated by this fact of
life are vested in the agencies, not the courts.” Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d
60, 66 (D.C. Cir. 1987). Given the limited point sources for NOx emissions and the area’s ozone
attainment status, the level of detail provided by BLM was reasonable even assuming there were
a handful of isolated exceedances of the ozone NAAQS between 2001 and 2008. The Court is
satisfied that BLM “adequately considered and disclosed the environmental impact of its actions
and that its decision is not arbitrary or capricious.” Theodore Roosevelt Conservation, 661 F.3d
at 75 (quotation marks and citation omitted).
2. PM10 Emissions
WildEarth Plaintiffs next contend that “BLM failed to take the requisite hard look at air
quality impacts from PM10 emissions resulting from lease development.” WildEarth Pls.’ [89]
Mem. at 11. Again, this contention is belied by the record. In its final EIS, BLM identified the
environmental and health consequences of PM10 emissions and thoroughly considered the
impacts that could be expected to result from leasing the WAII tracts for mining operations. See
17
J.A. 1034-48, 1217-21, 1224. According to monitoring data relied upon by BLM,6 the 24-hour
background concentration for PM10 in the areas adjacent to the WAII tracts for the period from
2005 through 2007 was 78 µg/m3, below the NAAQS of 150 µg/m3. See J.A. 1033. BLM also
openly acknowledged that there was one exceedance of PM10 standards in the area in 2005, but
explained that the exceedance was attributable to maintenance operations at a nearby railroad
line and not mining operations. See J.A. 935, 1037. On this basis, BLM observed that the area is
considered to be in “attainment” status for PM10 emissions. See J.A. 1388. In addition, BLM
cited air quality modeling data suggesting that “the projected mine activities at the [WAII tracts]
will be in compliance with PM10 ambient air standards for the life of the mine at the permitted
mining rate . . . .” J.A. 1217. Indeed, BLM’s modeling analysis indicated that the highest-
projected 24-hour PM10 concentrations during the “worst-case” years would be 47.8 and 49.9
µg/m3, again below the NAAQS of 150 µg/m3. See J.A. 1038.
BLM also considered information concerning the PRB generally. Although there were
no monitored exceedances of the annual PM10 standard in the Wyoming PRB, BLM
acknowledged that there were several known exceedances of the 24-hour PM10 standard between
2001 through 2007. See J.A. 1217. Specifically, BLM identified twenty-nine exceedances
between 2001 and 2006 and nine exceedances in early 2007.7 See J.A. 1037. At the same time,
BLM explained that the “exceedances are likely attributable to a variety of causes including
long-term drought conditions, associated high winds, contributions from non-mining sources
6
In projecting the air quality impacts of leasing the WAII tracts for mining operations, BLM
reasonably relied on data pertaining to Antelope Coal LLC’s existing operations because the
mining and emission mitigation methods would be substantially the same at the WAII tracts and
the permitted facilities would not change. See J.A. 1041.
7
WildEarth Plaintiffs fault BLM for depicting PM10 monitoring data in a tabular format
highlighting the second- and fourth-highest PM10 concentrations between 2005 to 2007, but this
presentation was not unreasonable, especially since BLM openly identified known exceedances
in the body of its analysis. See J.A. 1036-37.
18
such as increased traffic on unpaved roads proximate to some of the sampling locations, as well
as proximity of un-reclaimed mining activity to sampler locations.” J.A. 1037. Furthermore,
BLM openly acknowledged that there is a PM10 non-attainment zone in Sheridan County,
approximately 150 miles from the WAII tracts and attributable to localized sources. See J.A.
1388. BLM highlighted that there are no other PM10 non-attainment zones within 150 miles of
the WAII tracts and that most of the Wyoming PRB is considered to be in “attainment” status for
PM10 emissions.8 See J.A. 1388.
Meanwhile, despite WildEarth Guardians’ assertion to the contrary, BLM did not “gloss
over” PM10 modeling data for the PRB. WildEarth Pls.’ [89] Mem. at 12. In its final EIS, the
agency expressly recognized that modeling projected some exceedances of the 24-hour PM10
standard, but discounted the data in part on the basis that modeling tends to over-predict 24-hour
impacts of surface coal mining—a tendency that is directly reflected in an agreement between
EPA and Wyoming environmental authorities that permits greater weight to be placed on PM10
monitoring data. See J.A. 1041, 1395-97; see also WildEarth Pls.’ [89] Mem. at 13 (recognizing
that BLM discussed the modeling results and explained the basis for its decision to discount
those results). As WildEarth Plaintiffs concede, “BLM has the discretion to choose which PM10
analysis method it will use to evaluate impacts.” WildEarth Pls.’ [71] Mem. at 14.
Ultimately, contrary to what WildEarth Plaintiffs may believe, BLM’s analysis of the
impacts of the PM10 emissions attendant to leasing the WAII tracts for mining operations is a far
cry from “conclusory.” WildEarth Pls.’ [89] Mem. at 11. The level of detail provided and the
presentation of relevant information are consistent with the “rule of reason” that guides this
8
An air quality modeling summary annexed to the final EIS further suggests that, due to
prevailing winds and the distances between mines, it is unlikely that mining at the WAII tracts
will contribute to exceedances at neighboring mines. See J.A. 1412-13.
19
Court’s review. BLM “adequately considered and disclosed the environmental impact of its
actions and [] its decision is not arbitrary or capricious.” Theodore Roosevelt Conservation, 661
F.3d at 75 (quotation marks and citation omitted).
3. NO2 Emissions
WildEarth Plaintiffs further claim that BLM erred in analyzing the impacts of NO2
emissions attendant to leasing the WAII tracts. But WildEarth Plaintiffs do not dispute that
BLM in fact analyzed the impacts of NO2 emissions. See, e.g., WildEarth Pls.’ [71] Mem. at 17.
Nor could they, as BLM did so in great detail.9 See J.A. 1047-54, 1215-25, 1397-98. WildEarth
Plaintiffs instead tender a narrow challenge to BLM’s analysis. Specifically, they argue that
“[a]lthough BLM recognized the health risks associated with short-term exposure to NO2, BLM
failed to analyze the degree to which the Leases would affect NO2 concentrations on an hourly
basis.” WildEarth Pls.’ [71] Mem. at 17 (emphasis added). WildEarth Plaintiffs’ argument is
premised on the assumption that BLM was somehow required to supplement its environmental
impacts analysis to apply a 1-hour NO2 standard that was adopted by EPA for the first time more
than a year after the final EIS was published. See PRIMARY NATIONAL AMBIENT AIR QUALITY
STANDARDS FOR NITROGEN DIOXIDE, 75 Fed. Reg. 6474 (Feb. 9, 2010). The argument is
unavailing for at least three reasons. First, WildEarth Plaintiffs concede that they first raised this
issue in the administrative appeal that they filed in May 2010—after the ROD had been signed—
even though the 1-hour NO2 standard was proposed and published in July 2009 and February
2010, respectively. See WildEarth Pls.’ [71] Mem. at 16 n.9; WildEarth Pls.’ [89] Mem. at 16.
By failing to bring the issue to BLM’s attention prior to the signing of the ROD, WildEarth
Plaintiffs waived their right to pursue the issue in this action. Cf. Vermont Yankee Nuclear
9
BLM’s analysis included a reasonable discussion of mitigation measures for NO2 emissions.
See J.A. 1051-54.
20
Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553 (1978) (“[W]hile it is true that
NEPA places upon an agency the obligation to consider every significant aspect of the
environmental impact of a proposed action, it is still incumbent upon intervenors who wish to
participate to structure their participation so that it is meaningful, so that it alerts the agency to
the intervenors’ position and contentions.”). Second, as WildEarth Plaintiffs concede, EPA’s 1-
hour NO2 standard did not become effective until April 2010. See WildEarth Pls.’ [71] Mem. at
16 n.9. By that time, the ROD had already been signed and there was “no ongoing major Federal
action that could require supplementation.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55,
73 (2004) (quotation marks and citation omitted). Third, EPA’s promulgation of the 1-hour NO2
standard does not reflect the sort of “new circumstances or information” triggering an agency’s
duty to supplement. 40 C.F.R. § 1502.9(c)(1)(ii); see also Marsh v. Oregon Natural Res.
Council, 490 U.S. 360, 373 (1989) (“[A]n agency need not supplement an EIS every time new
information comes to light after the EIS is finalized. To require otherwise would render agency
decisionmaking intractable, always awaiting updated information only to find the new
information outdated by the time a decision is made.”). BLM’s analysis of the impacts of NO2
emissions complies with the “rule of reason” that guides this Court’s review. BLM “adequately
considered and disclosed the environmental impact of its actions and [] its decision is not
arbitrary or capricious.” Theodore Roosevelt Conservation, 661 F.3d at 75 (quotation marks and
citation omitted).
4. Disturbance and Reclamation
PRBRC claims that that BLM failed to take the requisite “hard look” at the land and
hydrologic disturbance and reclamation that could be expected to result from leasing the WAII
tracts for coal mining operations. PRBRC especially faults BLM for failing to adequately
21
address the absence of and need for so-called “contemporaneous reclamation.” See 30 C.F.R. §
816.100 (“Reclamation efforts, including but not limited to backfilling, grading, topsoil
replacement, and revegetation, on all land that is disturbed by surface mining activities shall
occur as contemporaneously as practicable with mining operations . . . .”).10 But in its final EIS,
BLM provided a realistic and detailed appraisal of land and hydrologic disturbance and
reclamation. BLM analyzed disturbance and reclamation when discussing such matters as
topographic moderation, groundwater quality, surface erosion, vegetation and wildlife, and
visual resources, and it disclosed the associated impacts (e.g., a more uniform topography, soil
erosion, a reduction in wildlife habitat and plant species diversity, the dewatering of coal and
overburden aquifers, loss of wetlands functions, higher concentrations of dissolved solids in
groundwater, etc.). See, e.g., J.A. 1016-18, 1067-72, 1076-77, 1087-88, 1091-92, 1096-99, 1103,
1153, 1195, 1204, 1210-11, 1225-27, 1237, 1241-42, 1257.
Furthermore, regardless of whether BLM considered the specific extra-record materials
cited by PRBRC, BLM openly acknowledged the temporal gap between surface mining activities
and reclamation. BLM indicated that the reclamation process “would begin after an area is
mined,” but estimated that “two to four years” could elapse between topsoil stripping and
reseeding and recognized that the time lag “would be longer for stockpiles, haulroads, some
10
Similarly, PRBRC suggests that BLM’s analysis of alternatives and mitigation measures
related to disturbance and reclamation was flawed, but PRBRC waived this argument by failing
to raise it in a manner that would have permitted BLM to respond meaningfully during
administrative proceedings. In any event, the applicable statutory and regulatory framework
does not contemplate instant reclamation or reclamation on an acre-by-acre basis as surface
mining activities proceed. Rather, reclamation is supposed to occur “as contemporaneous as
practicable.” 30 C.F.R. § 816.100 (emphasis added); see also 30 U.S.C. § 1202(e). BLM’s
consideration of alternatives and mitigation measures was reasonable in light of this framework
and the scope of the contemplated action. See Theodore Roosevelt Conservation, 661 F.3d at 73(“[W]e review both an agency’s definition of its objectives and its selection of alternatives under
the rule of reason.”) (quotation marks and citation omitted).
22
sediment-control structures, and other mine facilities.” J.A. 1096; see also J.A. 1097 (disclosing
that it would take “20 to 100 years” to restore some plant species to pre-mining density levels).
BLM further observed that a “minimum of 10 years” would be required before “completion of
reclamation” and “release of the reclamation bond.” J.A. 1097. And BLM also identified the
ratio between disturbed and reclaimed areas in the PRB, breaking the data down into three
categories: areas that are or are projected to be permanently reclaimed; areas that are or are
projected to be undergoing active mining or that are mined but not yet reclaimed; and areas that
are or are projected to be unavailable for reclamation until mining operations are completed.11
See J.A. 1192, 1194-95. BLM’s projections clearly disclosed a gap between disturbed and
reclaimed areas, but showed that the gap was expected to narrow with time. See J.A. 1194-95,
1657-58.
In the final analysis, BLM provided a realistic appraisal of disturbance and reclamation,
which included disclosing the past and projected absence of instant or acre-for-acre reclamation
as surface mining activities proceed. Presented with this appraisal, the ultimate decision-maker
was well positioned to make a “fully informed” decision about the state of and need for
contemporaneous reclamation. New York, 681 F.3d at 476. The Court is satisfied that BLM
“adequately considered and disclosed the environmental impact of its actions and that its
decision is not arbitrary or capricious.” Theodore Roosevelt Conservation, 661 F.3d at 75(quotation marks and citation omitted).
11
BLM’s reliance on actual site conditions instead of bond release statistics was reasonable in
part because the former measures the process of reclamation and the latter measures the ultimate
success of reclamation many years after surface mining activities. See J.A. 2683, 2795.
23
5. Compliance with 30 U.S.C. § 184(a)
PRBRC also contends that BLM violated NEPA by failing to analyze whether leasing the
WAII tracts would comply with 30 U.S.C. § 184(a), which provides in relevant part:
No person, association, or corporation, or any subsidiary, affiliate,
or persons controlled by or under common control with such
person, association, or corporation shall take, hold, own or control
at one time, whether acquired directly from the Secretary under
this chapter or otherwise, coal leases or permits on an aggregate of
more than 75,000 acres in any one State and in no case greater than
an aggregate of 150,000 acres in the United States.
30 U.S.C. § 184(a). Specifically, PRBRC claims that “BLM failed to evaluate whether, in
issuing of [sic] a maintenance lease, Antelope [Coal LLC] and its parent company Cloud Peak
would hold or control at one time coal leases or permits on an aggregated [sic] of more than
75,000 acres in any one State and in no case greater than an aggregated [sic] of 150,000 acres in
the United States.” PRBRC’s [70-1] Mem. at 25 (internal quotation marks and citation omitted).
PRBRC reasons that BLM was required to consider whether leasing the WAII tracts to
Antelope Coal LLC would comply with 30 U.S.C. § 184(a) because: first, NEPA requires an EIS
for “major Federal actions significantly affecting the quality of the human environment,” 42
U.S.C. § 4332(2)(C); second, the term “significantly” includes the “intensity” of the impact, 40
C.F.R. § 1508.27(b); and third, when evaluating the “intensity” of an action, responsible officials
should consider “[w]hether the action threatens a violation of Federal, State, or local law or
requirements imposed for the protection of the environment,” id. § 105.27(b)(10). But PRBRC
offers no rejoinder to the Federal Defendants’ argument that 30 U.S.C. § 184(a) was imposed not
for the protection of the environment but rather as an antitrust measure, see Fed. Defs.’ [79-1]
Mem. at 46-47, countering only that whether the statute “is imposed for the protection of the
environment or not is irrelevant,” PRBRC’s [86] Mem. at 18. Based on the absence of a
response, the Court shall treat as conceded the Federal Defendants’ argument that 30 U.S.C. §
24184(a) was not imposed for the protection of the environment. See Hopkins v. Women’s Div.,
Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff’d, 98 F. App’x 8 (D.C.
Cir. 2004) (“It is well understood in this Circuit that when a plaintiff files an opposition to a
dispositive motion and addresses only certain arguments raised by the defendant, a court may
treat those arguments that the plaintiff failed to address as conceded.”); accord Lewis v. District
of Columbia, No. 10-5275, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2, 2011) (per curiam); see
also 30 U.S.C. § 184(k), (l) (referring to “unlawful trusts” and “antitrust laws”).
Contrary to what PRBRC may think, the conceded fact that 30 U.S.C. § 184(a) was not
imposed for the protection of the environment is anything but “irrelevant.” PRBRC’s [86] Mem.
at 18. PRBRC’s irrelevancy argument turns on its interpretation of 40 C.F.R. § 1508.27(b)(10)
as a two-prong inquiry requiring responsible officials to consider “whether the action threatens a
violation of Federal, State, or local law,” on the one hand, or “requirements imposed for the
protection of the environment,” on the other hand. 40 C.F.R. § 1508.27(b)(10). Stated
somewhat differently, PRBRC suggests that the phrase “imposed for the protection of the
environment” modifies only “requirements” and not “Federal, State, or local law.” See
PRBRC’s [86] Mem. at 17-18. This is a specious and untenable reading of the regulation. Such
a construction would require responsible officials to contemplate whether a proposed action
might threaten a violation of any federal, state, or local law regardless of its subject or purpose,
but the regulation quite clearly speaks to the factors responsible officials should consider when
evaluating the environmental impacts of agency action. The most natural reading of the
regulation is that the threatened violation must relate to a law or requirement that is “imposed for
the protection of the environment.” 40 C.F.R. § 1508.27(b)(10); see also Coal. on Sensible
Transp. Inc. v. Dole, 642 F. Supp. 573, 590 (D.D.C. 1986) (characterizing 40 C.F.R. §
251508.27(b)(10) as “requir[ing] consideration of whether a project threatens a violation of federal,
state, or local environmental laws.”) (emphasis added), aff’d, 826 F.2d 60 (D.C. Cir. 1987).
Indeed, the United States Court of Appeals for the District of Columbia Circuit has interpreted a
similar regulation in this way. See City of Los Angeles v. NHTSA, 912 F.2d 478, 490 (D.C. Cir.
1990) (interpreting 49 C.F.R. § 520.5(b)(6)(i)), overruled on other grounds by Fla. Audubon, 94
F.3d at 669.
Because it is conceded that 30 U.S.C. § 184(a) was not imposed for the protection of the
environment, and because 40 C.F.R. § 1508.27(b)(10) only requires responsible officials to
consider whether a proposed action threatens a violation of laws imposed for the protection of
the environment, there was no need for BLM’s NEPA analysis to address whether leasing the
WAII tracts would comply with 30 U.S.C. § 184(a). PRBRC’s claim that BLM acted arbitrarily
and capriciously by failing to analyze compliance with Section 184(a) is without merit.
* * *
In the end, “NEPA merely prohibits uninformed—rather than unwise—agency action.”
Methow Valley, 490 U.S. at 351. The Court finds that BLM’s final EIS considers the significant
environmental impacts of leasing the WAII tracts for coal mining operations, thereby enabling
the ultimate decision-maker to make a “fully informed” decision. New York, 681 F.3d at 476.
Although Plaintiffs understandably disagree with the substantive outcome, the Court is satisfied
that BLM “adequately considered and disclosed the environmental impact of its actions and that
its decision is not arbitrary or capricious.” Theodore Roosevelt Conservation, 661 F.3d at 75(quotation marks and citation omitted). Accordingly, the Court shall enter judgment in
Defendants’ favor on Plaintiffs’ NEPA claims.
26
C. Plaintiffs’ Remaining FLPMA Claims
WildEarth Plaintiffs claim that BLM violated the FLPMA by failing to “ensure that its
leasing decisions would comply with the NAAQS for ozone, PM10, and NO2.” WildEarth
Guardians’ [71] Mem. at 33. WildEarth Plaintiffs’ arguments in this vein are duplicative of its
NEPA arguments, and fail for the same reasons discussed above. See supra Part IV.B. More to
the point, neither the FLPMA nor the implementing regulations required BLM to analyze
whether and to what degree the leasing of the WAII tracts would comply with national ozone,
PM10, and NO2 standards. WildEarth Plaintiffs offer a single concrete source for this supposed
obligation, but the cited regulation simply provides that “[e]ach land use authorization shall
contain terms and conditions which shall . . . require compliance with air and water quality
standards established pursuant to applicable Federal or State law.” 43 C.F.R. § 2920.7(b)(3).
BLM satisfied this obligation by preparing a lease for the WAII tracts requiring compliance with
air and water quality standards. See J.A. 1707. Accordingly, the Court shall enter judgment in
Defendants’ favor on WildEarth Plaintiffs’ FLPMA claims.
D. Plaintiffs’ Remaining ESA Claims
Under the ESA, a federal agency must “insure that any action authorized, funded, or
carried out by such agency . . . is not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the destruction or adverse modification of
[critical] habitat . . . .” 16 U.S.C. § 1536(a)(2). If the agency determines that a contemplated
action “may [adversely] affect listed species or critical habitat,” then it must engage in “formal
consultation” with the appropriate consulting agency—here, FWS. 50 C.F.R. § 402.14(a).
However, “informal consultation” will suffice if the agency determines, “with the written
concurrence of the Director [of FWS], that the proposed action is not likely to adversely affect
27
any listed species or critical habitat.” Id. § 402.14(b)(1); see also id. § 402.13(a) (“If during
informal consultation it is determined by the Federal agency, with the written concurrence of
[FWS] that the action is not likely to adversely affect listed species or critical habitat, the
consultation process is terminated, and no further action is necessary.”). Moreover, “if the
agency determines that a particular action will have no effect on an endangered or threatened
species, the consultation requirements are not triggered.” Pac. Rivers Council v. Thomas, 30
F.3d 1050, 1054 n.8 (9th Cir. 1994), cert. denied 514 U.S. 1082 (1995).
In this case, BLM prepared a biological assessment to ascertain whether leasing the WAII
tracts for coal mining operations would affect listed species or critical habitat. See J.A. 1512-43.
Relying on monitoring data, BLM first found that the only listed species within the general
analysis area was the Ute ladies’-tresses orchid and that the only other listed species relatively
nearby was the black-footed ferret. See J.A. 1527-34. After taking into account each species’
biological and environmental needs and the anticipated effects of the proposed action, BLM
determined that the proposed leasing is “not likely to adversely affect” the Ute ladies’-tresses
orchid because, among other things, “[s]urveys of the existing suitable habitat at the Antelope
Mine and other mines in th[e] area have not found Ute ladies’-tresses” and any lease would
require a “100-foot no-disturbance buffer zone” covering potential habitat. J.A. 1530. BLM also
determined that the proposed leasing “would have no effect” on the black-footed ferret,
highlighting “the documented absence of black-footed ferrets in the region” and “the distance of
the [leasing] area from future reintroduction sites.” J.A. 1533. Subsequently, FWS concurred in
writing that that the proposed leasing is not likely to adversely affect the Ute ladies’-tresses
orchid and, although not required, acknowledged BLM’s determination that the proposed project
would have no effect on the black-footed ferret. See J.A. 34.
28
WildEarth Plaintiffs claim that the Federal Defendants acted arbitrarily and capriciously
by engaging in informal instead of formal consultation. See WildEarth Pls.’ [34] Compl. ¶¶ 129-
35. But the linchpin of WildEarth Plaintiffs’ claim is that BLM was required to consider the
climate change impacts of leasing the WAII tracts for coal mining operations. See, e.g., id. ¶ 132
(faulting BLM for failing to consider “the climate change impacts related to the inevitable
burning of the coal in coal-fired power plants”). Had BLM done so, WildEarth Plaintiffs posit,
then the agency might not have found that leasing the WAII tracts for coal mining operations is
unlikely to adversely affect the Ute ladies’-tresses orchid and will have no effect on the black-
footed ferret. See, e.g., id. ¶ 133. However, as set forth in detail above, WildEarth Plaintiffs
have failed to establish that they have standing to pursue such an argument in this case. See
supra Part IV.A. Meanwhile, WildEarth Plaintiffs offer no other reason why BLM should have
engaged in formal instead of informal consultation. Ultimately, because FWS concurred in
writing with BLM’s determination that proposed leasing is not likely to adversely affect the Ute
ladies’-tresses orchid, informal consultation was sufficient. See 50 C.F.R. §§ 402.13(a),
402.14(b)(1). Furthermore, because BLM determined that the proposed leasing would have no
effect on the black-footed ferret, no further consultation was required. See Pac. Rivers Council,
30 F.3d at 1054 n.8. The Court shall therefore enter judgment in Defendants’ favor on
WildEarth Plaintiffs’ ESA claims.
/
/
/
/
/
29
V. CONCLUSION
The Court has considered the remaining arguments tendered by Plaintiffs and has
concluded that they are without merit. Therefore, and for the reasons set forth above, Plaintiffs’
[70, 71] Motions for Summary Judgment shall be DENIED and Defendants’ [74, 75, 79] Cross-
Motions for Summary Judgment shall be GRANTED. An appropriate Order and Judgment
accompanies this Memorandum Opinion.
Date: July 30, 2012
_____/s/______________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
30