Western Organization of Resource Councils v. Jewell , 124 F. Supp. 3d 7 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
WESTERN ORGANIZATION OF RESOURCE )
COUNCILS and FRIENDS OF THE EARTH, )
)
Plaintiffs, )
)
v. )
) Civil Action No. 14-1993 (RBW)
SALLY JEWELL, in her capacity as Secretary of )
the Interior, DEPARTMENT OF THE )
INTERIOR, NEIL KORNZE, in his capacity as )
Director, Bureau of Land Management, and )
BUREAU OF LAND MANAGEMENT, )
)
Defendants. )
__________________________________________)
MEMORANDUM OPINION
The plaintiffs, Western Organization of Resource Councils and Friends of the Earth, filed
this civil action against the defendants—the Department of the Interior (“Interior”), Sally Jewell
in her capacity as Secretary of the Interior, the Bureau of Land Management (“Bureau”), and
Neil Kornze in his official capacity as Director of the Bureau (collectively, the “federal
defendants”)—“for declaratory and injunctive relief,” concerning the federal defendants’ alleged
“failure . . . to supplement its [1979] environmental impact analysis of the federal coal
management program . . . [and] assess the effect of the [p]rogram on the global climate, as
required by the National Environmental Policy Act[,] [42 U.S.C. § 4321 (2012)] and the
Administrative Procedure Act[,] [5 U.S.C. §§ 702, 706 (2012)].” Complaint (“Compl.”) ¶ 1; see
also id. ¶¶ 13-16. After the institution of this action, the Court permitted the State of Wyoming,
the State of North Dakota, and the Wyoming Mining Association to intervene (“intervenor-
defendants”). See July 15, 2015 Order (“Order”) at 7-13, ECF No. 37; February 18, 2015
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Minute Order. Currently pending before the Court are the Federal Defendant[s’] Corrected
Motion to Dismiss (“Defs.’ Mot.”), the State of Wyoming’s Motion to Dismiss (“Wyo. Mot.”),
the State of North Dakota’s Motion to Dismiss (“N.D. Mot.”), and the Wyoming Mining
Association’s Motion to Dismiss (“Wyo. Mining Ass’n Mot.”). Upon careful consideration of
the parties’ submissions, 1 the Court concludes for the reasons below that it will grant the federal
defendants’ motion to dismiss and therefore, deny the other motions to dismiss as moot.
I. BACKGROUND
A. National Environmental Policy Act
Congress enacted the National Environmental Policy Act (“NEPA”) for the purpose of
“promot[ing] efforts which will prevent or eliminate damage to the environment and biosphere . .
. .” 42 U.S.C. § 4321; see also id. § 4371. The NEPA provides that a federal agency shall
include in every recommendation or report on . . . major [f]ederal actions
significantly affecting the quality of the human environment, a detailed statement
by the responsible official on (i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the
proposal be implemented, [and] (iii) alternatives to the proposed action . . . .
Id. § 4332(2)(C). This is commonly referred to as an Environmental Impact Statement (“EIS”).
Oceana v. Bureau of Ocean Energy Mgmt., 37 F. Supp. 3d 147, 151 (D.D.C. 2014). The
pertinent regulations implemented pursuant to the NEPA require the agency to prepare a
1
In addition to the filings already referenced, the Court considered the following submissions in rendering its
decision: (1) the [Federal Defendants’] Memorandum of Law [in Support of Their Motion to Dismiss] (“Defs.’
Mem.”); (2) the Plaintiffs’ Response in Opposition to [the] Federal Defendants’ Motion to Dismiss (“Pls.’ Opp’n”);
(3) the Federal Defendant[s’] Reply in Support of Their Corrected Motion to Dismiss (“Defs.’ Reply”); (4) the State
of Wyoming’s Memorandum in Support of Motion to Dismiss (“Wyo. Mem.”); (5) the State of North Dakota’s
Memorandum in Support of its Motion to Dismiss (“N.D. Mem”); (6) the Wyoming Mining Association’s
Memorandum of Law in Support of its Motion to Dismiss (“Wyo. Mining Ass’n Mem.”); (7) the Plaintiffs’
Consolidated Response in Opposition to [the] State of North Dakota’s Motion to Dismiss and Wyoming Mining
Association’s Motion to Dismiss (“Pls.’ Consolidated Opp’n”); (8) the Plaintiffs’ Response in Opposition to [the]
State of Wyoming’s Motion to Dismiss (“Pls.’ Wyo. Opp’n”); and (9) the State of Wyoming’s Reply Memorandum
in Support of Motion to Dismiss (“Wyo. Reply”).
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programmatic EIS in certain circumstances. See 40 C.F.R. § 1508.25 (2012). And a supplement
to the programmatic EIS is necessary when either “the agency makes substantial changes in the
proposed action that are relevant to environmental concerns” or “there are significant new
circumstances or information relevant to environmental concerns and bearing on the proposed
action or its impacts.” Id. § 1502.9(c)(1)(i)-(ii).
B. The Federal Coal Management Program
The following allegations are derived from the plaintiffs’ complaint. The Bureau, an
agency within Interior, implemented the federal coal management program (the “program”) in
1979. Compl. ¶¶ 3, 48, 66, 190. Through the program, the Bureau has issued, and continues to
issue, leases to private parties that “grant[] [them] the right to mine coal from federal lands.” Id.
¶ 4; see also id. ¶¶ 47-50 (describing how leases are obtained); id. ¶¶ 67-68.
Before the Bureau implemented the program in 1979, it prepared a programmatic EIS for
the program. Id. ¶ 13; see also id. ¶¶ 57-65 (describing certain details of the 1979 analysis). The
1979 programmatic EIS has “never [been] supplemented . . . with an evaluation of the . . .
program’s effect on climate change.” Id. ¶ 16. More specifically, the 1979 programmatic EIS
has never been updated “to assess the effect[s] on climate change of greenhouse gas emissions
resulting from the . . . program, or to consider policies that could reduce [those] effects.” Id. ¶ 9;
see also id. ¶ 189.
C. The Plaintiffs
The plaintiffs are non-profit entities, whose “members live, work, recreate, and conduct
other activities in areas adjacent to tracts where coal mining occurs pursuant to leases issued
under the . . . program,” id. ¶ 25, as well as in “areas affected by emissions from electric power
plants that burn coal mined under [these] leases,” id. ¶ 26. They allege that their “members are
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affected by poor air quality associated with mining . . . .” Id. ¶ 25. According to the plaintiffs,
their members “have . . . substantial interest[s] in [ensuring] they breathe air that will not injure
their health,” id., as well as using and enjoying these areas for various public purposes, which
they cannot do because of the alleged harm from the “combustion of coal,” id. ¶¶ 25-26. In light
of these purported injuries, resulting from the federal defendants’ failure to supplement its 1979
environmental analysis, which the plaintiffs claim is in violation of the Administrative Procedure
Act (“APA”), 5 U.S.C. § 706(1), (2)(A) (2012), Compl. ¶¶ 192, 195-97, the plaintiffs filed suit
against the federal defendants, seeking, inter alia, to compel them to supplement the 1979
analysis, id. ¶¶ 1, 19.
II. LEGAL STANDARDS
A. Motion To Dismiss
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). So to survive a motion to dismiss for
“failure to state a claim upon which relief may be granted,” Fed. R. Civ. P. 12(b)(6), the
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The “claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see also Kowal v.
MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (plaintiff is entitled to “the benefit
of all inferences that can be derived from the facts alleged”). Although the Court must accept the
facts pleaded as true, legal allegations devoid of factual support are not entitled to this
assumption. See, e.g., Kowal, 16 F.3d at 1276. Along with the allegations made within the four
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corners of the complaint, the court can consider “any documents either attached to or
incorporated in the complaint and matters of which [it] may take judicial notice.” EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
B. Administrative Procedure Act
The Administrative Procedure Act (“APA”) “establishes a cause of action for those
‘suffering legal wrong because of agency action, or adversely affected or aggrieved by agency
action.’” Koretoff v. Vilsack, 614 F.3d 532, 536 (D.C. Cir. 2010) (quoting 5 U.S.C. § 702). The
APA directs the court to “compel agency action unlawfully withheld.” 5 U.S.C. § 706(1). A
claim under the “unlawfully withheld” provision of 5 U.S.C. § 706(1) can proceed only if it
contends that the “agency failed to take a discrete agency action that it is required to take.”
Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). The APA also directs courts to “hold
unlawful and 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). In
making this inquiry under 5 U.S.C. § 706(2), a reviewing court “must consider whether the
[agency’s] decision was based on a consideration of the relevant factors and whether there has
been a clear error of judgment.” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989)
(internal quotation marks omitted).
III. ANALYSIS
The plaintiffs argue that the federal defendants have neglected their obligation to
supplement the 1979 EIS for the federal coal management program 2 under the NEPA and its
2
There is some dispute amongst the various parties concerning the scope of the federal coal management program
for which an EIS was prepared. E.g., Wyo. Mining Ass’n Mem. at 4-5 (disagreement as to whether 1979 EIS
evaluated regional leasing process or included both the regional licensing process and leasing through the
application process). Another member of this Court has already found that the program assessed by the 1979 EIS
includes both “the competitive regional application process . . . [and] the leasing-for-application process.”
Wildearth Guardians v. Salazar, 783 F. Supp. 2d 61, 73 (D.D.C. 2011). Those parties that would have the Court
(continued . . .)
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implementing regulations. 3 See Compl. ¶¶ 9, 13-16, 189-96. According to the plaintiff, the
federal defendants’ obligation to supplement exists because the program is “an ongoing major
federal action,” as the federal defendants have “continue[d],” and will continue, “to issue new
leases under the program,” Pls.’ Consolidated Opp’n at 3; see also Pls.’ Opp’n at 14-15, and such
conduct has, and will have, a significant impact on the environment—specifically, climate
change, see Compl. ¶¶ 9, 13-16, 189-96. No existing authority, however, permits the Court to
impose the purported obligation on the federal defendants.
The pertinent regulation requires the federal defendants to supplement an EIS only where
the agency plans on making “substantial changes [to] the proposed action that are relevant to
environmental concerns” or where “there are significant new circumstances or information
relevant to environmental concerns and bearing on the proposed action or its impacts.” 40
C.F.R. § 1502.9(c)(1)(i)-(ii) (emphasis added). There is no underlying “proposed action” in this
case to trigger an obligation to supplement the 1979 EIS because the federal coal management
program has been implemented. See Compl. ¶¶ 47-50, 66, 68, 80, 190. Leasing decisions are
made pursuant to a pre-approved and EIS-supported program. And there is no allegation that the
federal defendants have issued, and continue to issue, leases in a manner other than what was
contemplated under the program implemented in 1979 or that they have proposed to amend the
leasing program since 1979. 4 See id. ¶¶ 47-50, 66, 68, 80, 190; cf. Greater Yellowstone Coal. v.
(. . . continued)
narrowly characterize the program, i.e., the program assessed did not include leasing through the application
process, provide no basis for the Court to deviate from the finding in Wildearth Guardians.
3
The federal defendants question whether the plaintiffs’ have asserted a claim under 5 U.S.C. § 706(1) or 5 U.S.C.
§ 706(2). See, e.g., Defs.’ Mem. at 1, 7. The Court need not decide that issue, as the plaintiffs have relied on only
one argument to support their APA claim(s).
4
There are allegations in the complaint concerning amendments to the program and proposals to amend the
program after 1979. See Compl. ¶¶ 66-77. Based on a reasonable reading of the plaintiffs’ complaint—as well as
their submissions—it does not appear that any post-1979 actions affected the leasing-by-application process by
(continued . . .)
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Tidwell, 572 F.3d 1115, 1122-23 (10th Cir. 2009) (“While the [government] could potentially
amend the [federal action at issue] in such a manner as to constitute a major federal action, there
is no allegation this has occurred.” (emphasis added)); id. at 1125 n.4.
The Court’s conclusion is in accord with precedent. In Norton, the respondents filed suit
against the petitioners in district court, alleging that the petitioners “fail[ed] to act to protect
public lands in Utah from damage caused by [off-road vehicle] use.” 542 U.S at 60. The
petitioners protected these public lands in Utah through, inter alia, a programmatic “land use
plan,” which was “adopted after notice and comment” and indicated how particular land can be
used. Id. at 59-60. One claim advanced by the respondents in Norton was that the petitioners
were required to “undertake supplemental environmental analyses for areas [in Utah,] in which
[off-road vehicle] use had increased.” Id. at 61. In overruling the Tenth Circuit’s reversal of the
district court’s dismissal of this claim, the Supreme Court relied on the principle that
“supplementation is necessary only if ‘there remains “major [f]ederal action” to occur,’” id. at 73
(one alteration omitted) (emphasis added) (quoting Marsh, 490 U.S. at 374). The Supreme Court
found that although the “approval of a land use plan” was a “major [f]ederal action” subject to an
EIS, “that [federal] action is completed when the [land use] plan is approved.” Id. (alteration
omitted) (emphasis in original). And “[t]he land use plan was the ‘proposed action’
contemplated by [40 C.F.R. § 1502.9(c)].” Norton, 542 U.S. at 73. Therefore, even after noting
that the petitioners “may issue management decisions to implement [the] land use plan[],” id. at
69 (internal quotation marks omitted), the Supreme Court nonetheless concluded there could be
“no ongoing ‘major [f]ederal action’ that could require supplementation . . . .” Id.; see also
(. . . continued)
which the federal defendants issue the leases complained of by the plaintiffs. See, e.g., id. ¶ 80 (“[the Bureau] has
continued to issue coal leases under the federal coal management program as contemplated under the 1979
[programmatic EIS]”).
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Hammond v. Norton, 370 F. Supp. 2d 226, 255 (D.D.C. 2005) (“[I]f the actions remaining . . .
are ‘purely ministerial,’ . . . then . . . no [supplemental EIS] must be prepared.”).
Likewise, the possibility of major federal action remaining here was foreclosed after the
federal coal management program was implemented in 1979 and that same program continues to
govern the leases today. Compl. ¶¶ 47-50, 66, 68, 80, 190. Once the federal coal management
program went into effect, the proposed federal action came to an end. That the federal
defendants continue to issue leases in a manner consistent with the federal coal management
program introduced in 1979, does not constitute an “ongoing ‘major [f]ederal action,’” Norton,
542 U.S. at 73, necessitating a supplemental EIS, cf. Ctr. for Biological Diversity v. Salazar, 706
F.3d 1085, 1095 (9th Cir. 2013) (“additional, independent actions . . . did not trigger [statutory]
supplementation of the . . . environmental analysis” where those actions did not “affect[] the
validity or completeness” of the plan for which the environmental analysis was conducted);
Greater Yellowstone, 572 F.3d at 1124 (recognizing that there is no remaining major federal
action “merely because an agency retains a degree of discretion in a project”); Yount v. Salazar,
No. 11-C-8171-PCT-DGC, 2013 WL 2370619, at *1, *2 (D. Ariz. May 29, 2013) (where the
Secretary of Interior decided “to withdraw from mineral development over one million acres of
public lands in the Grand Canyon Watershed in Northern Arizona,” and where assuming that the
Secretary of Interior may have had to evaluate claims from “mining claimants in the withdrawal
area[,] seek[ing] mineral exams to demonstrate that their claims constitute preexisting rights
exempt from the withdrawal,” there was no remaining federal action because the exams “were
not required to effectuate the withdrawal” and had “no bearing on the withdrawal decision
itself”); Audubon Naturalist Soc’y of the Cent. Atl. States, Inc. v. U.S. Dep’t of Transp., 524 F.
Supp. 2d 642, 710 (D. Md. 2007) (no major federal action remained where defendants had
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already made “critical decision” to move forward with highway construction project, despite the
fact that “approval of [certain] . . . design-build contracts” was “still pending”); Envtl. Prot. Info.
Ctr. v. U.S. Fish & Wildlife Serv., No. 04-CV-4647-CRB, 2005 WL 3021939, at *5, *6 (N.D.
Cal. Nov. 10, 2005) (no major federal action remaining where government had “adaptive
management” role i.e., “ongoing monitoring” responsibilities pursuant to a conservation plan).
Finally, the Court finds the plaintiffs’ reliance on Marsh, 490 U.S. at 371-72, Friends of
the Clearwater v. Dombeck, 222 F.3d 552 (9th Cir. 2000), and Nat’l Wildlife Fed’n v.
Appalachian Reg’l Comm’n, 677 F.2d 883 (D.C. Cir. 1981), unavailing. Pls.’ Opp’n at 5-9.
None of these cases present analogous facts where, as here, the government has implemented an
EIS-supported program that requires some degree of management after its implementation. In
other words, these cases fail to advise the Court as to when a programmatic EIS must be
supplemented. Rather, Marsh, 490 U.S. at 363, 367, 371-72, and Friends of the Clearwater, 222
F.3d at 554-55, 558, concerned supplementation of an EIS for specific projects. And National
Wildlife only touched upon the issue of when a programmatic EIS must be prepared. See 677
F.2d at 891-92. Indeed, National Wildlife appears to support the Court’s rationale for finding
that there is no ongoing major federal action in this case. See id. at 891 (where there is a
government “plan,” continuing major federal action can exist only if “considerable
implementation remained”). 5 In short, the plaintiffs have not directed the Court to any authority
that requires the federal defendants to supplement the 1979 programmatic EIS for the federal
coal management program.
5
Despite the absence of a programmatic EIS, the District of Columbia Circuit in National Wildlife concluded that
the government complied with its obligations under the NEPA because it conducted “site specific EISs” for
individual projects, pursuant to a larger highway development project. See 677 F.2d at 891. According to the
plaintiffs’ allegations, the federal defendants have conducted such site-specific analyses. See Compl. ¶ 18.
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IV. CONCLUSION
For the foregoing reasons, the Court grants the federal defendants’ motion to dismiss on
the ground that they have no duty to supplement the 1979 programmatic EIS for the federal coal
management program because there is no remaining or ongoing major federal action that confers
upon them a duty to do so.
SO ORDERED this 27th day of August, 2015. 6
REGGIE B. WALTON
United States District Judge
6
The Court has contemporaneously issued an Order consistent with this Memorandum Opinion.
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