Wildearth Guardians v. Sally Jewell

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2013 Decided December 24, 2013
No. 12-5300
WILDEARTH GUARDIANS, ET AL.,
APPELLANTS
POWDER RIVER BASIN RESOURCE COUNCIL, CA-11-037,
APPELLANT
v.
SALLY JEWELL, SECRETARY, U.S. DEPARTMENT OF INTERIOR,
ET AL.,
APPELLEES
Consolidated with 12-5312
Appeals from the United States District Court
for the District of Columbia
(No. 1:10-cv-01174)
Samantha Ruscavage-Barz argued the cause for the
appellants. Scott Gollwitzer and Matt Kenna were on brief.
Michael P. Senatore entered an appearance.
J. David Gunter II, Attorney, United States Department of
Justice, argued the cause for the appellees.
2
James Kaste, Senior Assistant Attorney General, Office of
the Attorney General for the State of Wyoming, Creighton R.
Magid, Andrew C. Emrich and John A. Bryson were on brief
for intervenors Antelope Coal, LLC, et al. in support of the
appellees. Michael J. McGrady, Senior Assistant Attorney
General, Office of the Attorney General for the State of
Wyoming, and Jay C. Johnson entered appearances.
Before: HENDERSON and BROWN, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: In April
2005, Antelope Coal LLC (Antelope Coal) filed an application
with the Bureau of Land Management (BLM), an agency
within the U.S. Department of the Interior (Interior),
requesting that a tract of federal land adjacent to Antelope
Coal’s existing mine in the Wyoming Powder River Basin be
offered for competitive lease sale to interested parties. In
March 2010 the BLM issued a Record of Decision (ROD),
dividing the land into two tracts (the West Antelope II tracts)
and offering them for lease through separate competitive
bidding processes. WildEarth Guardians, Defenders of
Wildlife, the Sierra Club (collectively, WildEarth) and the
Powder River Basin Resource Council (PRBRC and,
collectively with WildEarth, Appellants) challenge the BLM’s
decision to approve the West Antelope II tracts for lease.
They argue that the Final Environmental Impact Statement
(FEIS) supporting the ROD is deficient in several respects.
The district court granted summary judgment to the
defendants,1 finding that the plaintiffs lacked standing to raise
1
The defendants include Interior Secretary Sally Jewell, the
BLM and the United States Fish and Wildlife Service. The district
court permitted Antelope Coal, the State of Wyoming and the
3
one of their arguments and that their remaining arguments
failed on the merits. We conclude that, while they do have
standing, their merits arguments fall short. Accordingly, we
affirm the judgment of the district court.
I
A
Under the Mineral Leasing Act (MLA), 30 U.S.C. §§ 181
et seq., the Interior Secretary is authorized to offer leases on
tracts of federal land suitable for coal mining and to award such
leases based on a competitive bidding process. Id.
§ 201(a)(1). Pursuant to its authority under the MLA, see id.
§ 189, the BLM has promulgated regulations governing the
competitive leasing of rights to extract federal coal. See 43
C.F.R. pt. 3420.
The National Environmental Policy Act of 1969 (NEPA),
42 U.S.C. §§ 4321 et seq., requires federal agencies, including
the BLM, to consider and report on the environmental effect of
their proposed actions. See Theodore Roosevelt Conservation
P’ship v. Salazar (Theodore Roosevelt I), 616 F.3d 497, 503
(D.C. Cir. 2010). “NEPA is an ‘essentially procedural’ statute
intended to ensure ‘fully informed and well-considered’
decisionmaking . . . .” New York v. NRC, 681 F.3d 471, 476
(D.C. Cir. 2012) (quoting Vt. Yankee Nuclear Power Corp. v.
Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978)).
“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. Second, it
National Mining Association to intervene as defendants. See
WildEarth Guardians v. Salazar, 272 F.R.D. 4 (D.D.C. 2010). The
district court also dismissed one of WildEarth’s claims on the
pleadings, which claim is not appealed. See WildEarth Guardians
v. Salazar, 783 F. Supp. 2d 61 (D.D.C. 2011).
4
ensures that the agency will inform the public that it has indeed
considered environmental concerns in its decisionmaking
process.” Balt. Gas & Elec. Co. v. Natural Res. Def. Council,
Inc., 462 U.S. 87, 97 (1983) (citation and quotation marks
omitted); accord Dep’t of Transp. v. Pub. Citizen, 541 U.S.
752, 768 (2004). To meet these aims, NEPA requires an
agency to prepare, and solicit public comment on, an
environmental impact statement (EIS) whenever it proposes a
“major Federal action[] significantly affecting the quality of
the human environment.” 42 U.S.C. § 4332(2)(C). The EIS
must consider, inter alia, “the environmental impact of the
proposed action,” id. § 4332(2)(C)(i); “any adverse
environmental effects which cannot be avoided,” id.
§ 4332(2)(C)(ii); see Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 351–52 (1989); and any “alternatives to
the proposed action,” 42 U.S.C. § 4332(2)(C)(iii); see Citizens
Against Burlington, Inc. v. Busey, 938 F.2d 190, 194–95 (D.C.
Cir. 1991) (noting that “alternatives” is not self-defining and
“must be moored to ‘some notion of feasibility’ ” (quoting Vt.
Yankee, 435 U.S. at 551)). The EIS is to be prepared in
consultation with any federal agency with special expertise
relating to the environmental impact involved, 42 U.S.C.
§ 4332(2)(C) (flush language), and the Environmental
Protection Agency (EPA) must review it and submit written
comments, see id. § 7609(a). The EIS also must include a
“cumulative impact” analysis addressing “the incremental
impact of the action when added to other past, present, and
reasonably foreseeable future actions” of any agency or
individual. 40 C.F.R. § 1508.7; see 40 C.F.R. § 1508.25;
TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433
F.3d 852, 864 (D.C. Cir. 2006). NEPA does not, however,
“require agencies to elevate environmental concerns over other
appropriate considerations. . . . [I]t require[s] only that the
agency take a ‘hard look’ at the environmental consequences
before taking a major action.” Balt. Gas & Elec., 462 U.S. at
5
97 (citation omitted) (quoting Kleppe v. Sierra Club, 427 U.S.
390, 410 n.21 (1976)). It requires informed decisionmaking
“but not necessarily the best decision.” New York, 681 F.3d at
476; see also Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 23 (2008) (“NEPA itself does not mandate particular
results.” (quoting Robertson, 490 U.S. at 350)).
The BLM is also constrained by the Federal Land Policy
and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701 et
seq., which requires it to “manage the public lands under
principles of multiple use and sustained yield,” id. § 1732(a).
Multiple use requires balancing the competing uses of land, id.
§ 1702(c); sustained yield requires the BLM to control
depleting uses over time, id. § 1702(h). See also Norton v. S.
Utah Wilderness Alliance, 542 U.S. 55, 58 (2004). The BLM
does so by using a “multi-step planning and decisionmaking
process” that begins with the formation of a land use plan for a
geographic region called a resource management plan.
Theodore Roosevelt I, 616 F.3d at 504; see 43 C.F.R.
§ 1601.0-5(n) (describing contents of resource management
plan). The resource management plan “does not, however,
include a decision whether to undertake or approve any
specific action. Specific projects are reviewed and approved
separately, but must conform to the relevant [plan].”
Theodore Roosevelt I, 616 F.3d at 504 (citing 43 C.F.R.
§§ 1601.0-5(n), 1610.5-3(a)); see also Norton, 542 U.S. at 59–
60.
B
The Wyoming Powder River Basin is the largest source of
coal in the United States. It accounted for more than 33 per
cent of all coal mined in the United States in 2003. An
increasing percentage of the coal mined in the United States in
recent years comes from the Powder River Basin because its
coal is lower in sulfur than most coal, contains less fly ash
6
when burned and can be mined using surface mining methods
that are generally safer and less labor intensive than
underground mining.
Antelope Coal operates a coal mine (Antelope Mine) in
the Wyoming Powder River Basin. The Antelope Mine
produced 33.9 million tons of coal in 2006, representing 7.9
per cent of the coal produced in the Wyoming Powder River
Basin and 1.1 per cent of the estimated carbon dioxide (CO2)
emissions in the United States. If production continues at
average historical rates, the Antelope Mine’s coal reserves will
be depleted within the decade. In order to extend the life of
the mine, Antelope Coal sought to lease the West Antelope II
tracts, encompassing 4,100 acres of federal coal reserves on
two separate tracts adjacent to the mine.
On April 6, 2005, Antelope Coal applied to the BLM,
requesting that the West Antelope II tracts be offered for
competitive lease sale. On October 17, 2006, the BLM
published a notice of its intent to prepare an EIS for leasing the
West Antelope II tracts and announced that it planned to hold a
public “scoping” hearing to solicit comments on the issues to
be considered in the EIS. On February 8, 2008, the EPA
published a notice of the availability of the draft EIS and
solicited public comment on it. The BLM received comments
on the draft EIS at a public hearing and in writing. On
December 19, 2008, the EPA published a notice of the
availability of the FEIS. The FEIS spans nearly five hundred
pages and includes the BLM’s responses to public comments
on the draft EIS. The BLM solicited further public comment
on the FEIS and issued written responses to the comments it
received. On March 25, 2010, the BLM issued the ROD,
approving Antelope Coal’s application and dividing the land
into two tracts, each to be offered for lease by competitive
bidding. Antelope Coal won the bidding for both leases and
the leases became effective in 2011.
7
After the BLM approved the leases, WildEarth and the
PRBRC each filed a notice of administrative appeal with the
Interior Board of Land Appeals (IBLA). WildEarth sought a
stay of the ROD pending appeal but the IBLA did not act on
WildEarth’s motion within 45 days, thus making the ROD the
BLM’s final agency action in WildEarth’s appeal. 43 C.F.R.
§ 4.21(a)(3), (c). The PRBRC pursued its administrative
appeal and the IBLA affirmed the ROD in full. See Powder
River Basin Res. Council, 180 IBLA 119 (2010); see also 43
C.F.R. § 4.21(d) (IBLA decision is final agency action).
WildEarth and the PRBRC filed separate complaints in the
district court raising similar challenges to the adequacy of the
FEIS. 2 The district court consolidated the two cases and,
upon the parties’ cross-motions, granted summary judgment to
the defendants on all claims. WildEarth Guardians v.
Salazar, 880 F. Supp. 2d 77 (D.D.C. 2012). Both WildEarth
and the PRBRC timely appealed.
II
A. Standing
We begin with standing. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94–95 (1998). The party invoking
federal jurisdiction bears the burden of establishing the
elements of Article III standing:
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
2
We note that, although the Appellants’ claim may not have
been ripe when first pursued in district court, it has since ripened
because leases have been issued to Antelope Coal for the tracts.
Recording of Oral Argument at 9:40 (Nov. 18, 2013); see Ctr. for
Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 480–82
(D.C. Cir. 2009).
8
imminent, not conjectural or hypothetical. Second,
there must be 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.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)
(citations, quotation marks and alterations omitted); accord
Texas v. EPA, 726 F.3d 180, 198 (D.C. Cir. 2013). “[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 Adver.
Comm’n, 432 U.S. 333, 343 (1977); accord Am. Trucking
Ass’ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d
243, 247 (D.C. Cir. 2013), petition for cert. filed, 82 U.S.L.W.
3259 (U.S. Oct. 17, 2013) (13-509). We have little difficulty
concluding that the latter two elements of associational
standing are met here and focus on whether the members of
WildEarth or the PRBRC would otherwise have standing to
sue in their own right.
As we discuss in Section II.B, infra, the Appellants claim
that the BLM failed to adequately consider several
environmental concerns, including the increase in local
pollution and global climate change caused by future mining,
before authorizing the leasing of the West Antelope II tracts.
Their claim describes the “archetypal procedural injury”—an
agency’s failure to prepare (or adequately prepare) an EIS
before taking action with adverse environmental
consequences. Nat’l Parks Conservation Ass’n v. Manson,
9
414 F.3d 1, 5 (D.C. Cir. 2005); see Defenders of Wildlife, 504
U.S. at 572 & n.7. Although we relax the redressability and
imminence requirements for a plaintiff claiming a procedural
injury, “the requirement of 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);
accord Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 15
(D.C. Cir. 2011). A procedural injury claim therefore must be
tethered to some concrete interest adversely affected by the
procedural deprivation: “[A] procedural right in vacuo . . . is
insufficient to create Article III standing.” Summers, 555 U.S.
at 496.
The procedural injury the Appellants claim—the allegedly
deficient FEIS—is tied to their respective members’ concrete
aesthetic and recreational interests. “[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.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000)
(quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). In
support of their summary judgment motion, the Appellants
submitted affidavits from several of their members attesting to
those members’ aesthetic interests in the land surrounding the
West Antelope II tracts and specific plans to visit the area
regularly for recreational purposes. We agree that, as the
district court found and the parties do not dispute, the affidavits
suffice to show that some of the Appellants’ members will be
injured by the increase in local air, water and land pollution
that will result from mining on the West Antelope II tracts.
See Friends of the Earth, 528 U.S. at 181–83; Defenders of
Wildlife, 504 U.S. at 562–64.
As for causation, in a case alleging a procedural
deficiency, “an adequate causal chain must contain at least two
10
links: one connecting the omitted 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.”
Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 668 (D.C. Cir.
1996) (en banc); see also Defenders of Wildlife v. Perciasepe,
714 F.3d 1317, 1323 (D.C. Cir. 2013) (causation requirement
not relaxed). The first link does not require the plaintiff to
show that but for the alleged procedural deficiency the agency
would have reached a different substantive result. See City of
Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1186 (D.C. Cir.
2007); Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152,
1160 (D.C. Cir. 2005). “All that is necessary is to show that
the procedural step was connected to the substantive result.”
Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (quoting
Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89,
94–95 (D.C. Cir. 2002)); accord Defenders of Wildlife, 504
U.S. at 572 n.7. But a plaintiff “must still demonstrate a
causal connection between the agency action and the alleged
injury.” City of Dania Beach, Fla., 485 F.3d at 1186; accord
Ctr. for Law & Educ., 396 F.3d at 1160; see also Fla. Audubon
Soc’y, 94 F.3d at 664–65 (“[A] procedural-rights plaintiff must
show not only that the defendant’s acts omitted some
procedural requirement, but also that it is substantially
probable that the procedural breach will cause the essential
injury to the plaintiff’s own interest.”). We think the
Appellants have done so here because the local pollution that
causes their members’ aesthetic and recreational injuries
follows inexorably from the decision to authorize leasing on
the West Antelope II tracts.
The relaxed redressability requirement is also satisfied.
See Ctr. for Law & Educ., 396 F.3d at 1160 & n.2 (discussing
relationship between causation and redressability); Fla.
Audubon Soc’y, 94 F.3d at 668 (first causal link “foreshadows”
11
redressability). Vacatur of the BLM order would redress the
Appellants’ members’ injuries because, if the BLM is required
to adequately consider each environmental concern, it could
change its mind about authorizing the lease offering. See
Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008); City of
Dania Beach, Fla., 485 F.3d at 1186. We therefore conclude
that the Appellants have standing to challenge the procedural
inadequacy of the BLM’s decision—namely, the alleged
deficiencies in the FEIS—based on their members’ aesthetic
and recreational injuries caused by local pollution.
The district court used this analysis insofar as it applied to
the Appellants’ argument that the BLM failed to adequately
address local pollution. WildEarth Guardians, 880 F. Supp.
2d at 86–87. The court went on, however, to address
separately their standing to argue that the FEIS failed to
adequately address the impact of the leasing decision on global
climate change. Id. at 83. It found they lacked standing to
raise the argument because they could not demonstrate a link
between their members’ recreational and aesthetic interests,
“which are uniformly local, and the diffuse and unpredictable
effects of [greenhouse gas] emissions.” Id. at 84. The
district court therefore seemed to require that the specific type
of pollution causing the Appellants’ aesthetic injury—here,
local pollution—be the same type that was inadequately
considered in the FEIS. In this respect, we think it sliced the
salami too thin. Cf. Duke Power Co. v. Carolina Envtl. Study
Grp. Inc., 438 U.S. 59, 78–79 (1978) (rejecting contention that,
excepting taxpayer suit, plaintiff who has otherwise
established elements of Article III standing must also
demonstrate nexus between right asserted and injury alleged).
In Center for Biological Diversity v. U.S. Department of
Interior, environmental groups challenged Interior’s decision
to expand leasing areas for oil and gas development off the
coast of Alaska. 563 F.3d 466 (D.C. Cir. 2009). We
12
concluded that the petitioners had satisfied neither the injury in
fact nor the causation requirements of standing based on their
claim that expanded drilling would contribute to global climate
change which in turn would threaten their members’
enjoyment of the area and indigenous animal species. Id. at
475–79; see also Wash. Envtl. Council v. Bellon, 732 F.3d
1131, 1141–46 (9th Cir. 2013) (finding no causal link between
regulatory failure and assumed injury from climate change).
We think (and the Appellants do not dispute) that the
Appellants likewise cannot establish standing based on the
effects of global climate change. But they have established a
separate injury in fact not caused by climate change—the harm
to their members’ recreational and aesthetic interests from
local pollution. In Center for Biological Diversity, we noted
that “Interior’s adoption of an irrationally based Leasing
Program could cause a substantial increase in the risk to”
petitioners’ similar aesthetic injury—“their enjoyment of the
animals affected by the offshore drilling”—and held that this
gave petitioners standing to challenge the decision to authorize
the leasing even though the claimed deficiencies concerned
Interior’s failure to consider greenhouse gas emissions and
global climate change. 563 F.3d at 479. The same reasoning
applies here. 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.”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006)
(quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)).
This Court once held that “having established standing to
challenge the adequacy of the FEIS on at least one ground,
13
[plaintiffs] are entitled to raise other inadequacies in the FEIS.”
Sierra Club v. Adams, 578 F.2d 389, 392 (D.C. Cir. 1978).
We rested this statement on the premise that a plaintiff may
invoke “the ‘public interest’ in requiring government officials
to discharge faithfully their statutory duties under NEPA.” Id.
at 392; see also Morton, 405 U.S. at 737. We express no
opinion on whether the “public interest” rationale remains
cognizable in light of subsequent Supreme Court precedent.
See, e.g., DaimlerChrysler, 547 U.S. at 351–53 (rejecting
“commutative” theory of standing whereby standing as to one
claim would suffice for all claims arising from same nucleus of
operative fact); see also id. at 353 n.5 (distinguishing Adams
from case at bar but expressing no opinion on its validity);
Lewis, 518 U.S. at 358 n.6 (where injunction requiring
provision of certain services to inmates concerned
inadequacies other than those that harmed plaintiffs, noting
that “standing is not dispensed in gross. If the right to
complain of one administrative deficiency automatically
conferred the right to complain of all administrative
deficiencies, any citizen aggrieved in one respect could bring
the whole structure of state administration before the courts for
review.”). We rest our holding on a different rationale. The
Appellants may challenge each of the alleged inadequacies in
the FEIS because each 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. 3 Contrary to the BLM’s assertion, the Appellants
3
The familiar principle that a plaintiff must demonstrate
standing for each form of relief sought, see Summers, 555 U.S. at
493; DaimlerChrysler, 547 U.S. at 352, is not to the contrary. The
Appellants seek only one type of relief relevant here—the vacatur of
the BLM’s leasing decision. They simply advance several
14
adequately raised their theory of procedural injury below and
we therefore conclude that they have standing to challenge
each of the alleged deficiencies in the FEIS.
B. The Merits
We apply the arbitrary and capricious standard of the
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., to the
merits of the Appellants’ NEPA and FLPMA challenges and
review de novo the district court’s grant of summary judgment.
Theodore Roosevelt I, 616 F.3d at 507; Nevada v. Dep’t of
Energy, 457 F.3d 78, 87 (D.C. Cir. 2006); see 5 U.S.C.
§ 706(2)(A). In doing so, we are mindful that our role is not to
“ ‘flyspeck’ an agency’s environmental analysis, looking for
any deficiency no matter how minor.” Nevada, 457 F.3d at
93. Rather, 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.” City of Olmsted Falls, Ohio v. FAA, 292 F.3d
261, 269 (D.C. Cir. 2002) (quoting Balt. Gas & Elec., 462 U.S.
at 97–98). In short, “an agency must take a ‘hard look’ at the
environmental effects of its proposed action.” Theodore
Roosevelt Conservation P’ship v. Salazar (Theodore Roosevelt
II), 661 F.3d 66, 75 (D.C. Cir. 2011); accord Balt. Gas & Elec.,
462 U.S. at 97. While the Appellants raise numerous
challenges to the sufficiency of the FEIS, we find none has
merit and consider only two worthy of discussion.
1. Global Climate Change
We turn first to the Appellants’ argument that the BLM
did not take a hard look at the effect of its leasing decision on
arguments in support of that claim. Cf. Am. Petroleum Inst. v. EPA,
72 F.3d 907, 911–12 (D.C. Cir. 1996).
15
global climate change.4 In the FEIS, the BLM discussed at
length the prevailing scientific consensus on global climate
change and coal mining’s contribution to it. The BLM
estimated the greenhouse gas (GHG) emissions that occurred
at the Antelope Mine in 2007 and projected emissions for a
typical year of operations if the West Antelope II tracts are also
leased. It projected that, with the addition of the West
Antelope II tracts, Antelope Mine would account for only .63
per cent of state-wide emissions of carbon dioxide equivalent
(CO2e). At the same time, the BLM noted that several factors
made any projection about future emissions speculative.
First, the BLM does not authorize mining through the issuance
of a coal lease; rather, a mining permit must be obtained from
the Wyoming Department of Environmental Quality with
oversight from an independent federal agency, the Office of
Surface Mining, and therefore mitigation measures can be
imposed at a later stage. Joint Appendix (JA) 422–23; see 30
U.S.C. §§ 1253, 1273(c). The BLM further assumed that
mining would continue at existing production rates and the
coal would continue to be used to generate electricity by
coal-fired power plants. Finally, the BLM identified
considerable uncertainty about regulatory and technological
developments that could affect future emissions.
4
The district court did not reach this issue and the Appellants
therefore ask us to remand. The parties have briefed the issue,
however, and at argument the Appellants indicated they have little
more to add. The agency record is before us, our review of the
district court’s decision post-remand would be de novo and we think
the merits of the issue are clear. Indeed, the only purpose served by
remand would be to satisfy the Appellants’ evident desire to delay
mining on the West Antelope II tracts. We think it appropriate to
resolve the issue now. See Friends of Blackwater v. Salazar, 691
F.3d 428, 434 n.* (D.C. Cir. 2012).
16
The Appellants allege several inadequacies in the BLM
analysis but they are of the flyspecking variety. First, they
contend that the BLM’s estimate of Antelope Mine’s
contribution to state-wide emissions failed to incorporate an
analysis of the impact of these emissions, particularly their
cumulative impact together with emissions from eleven other
pending lease applications in the Powder River Basin. We
think the BLM satisfied its obligation to consider “the
incremental impact of the action when added to other past,
present, and reasonably foreseeable future actions.” 40
C.F.R. § 1508.7; see TOMAC, 433 F.3d at 864. The BLM
quantified average CO2 or CO2e emissions for the Antelope
Mine, for Wyoming and for the United States. From these
figures it quantified the Antelope Mine’s contribution to
state-wide CO2e and nation-wide CO2 emissions and the
Wyoming Powder River Basin’s contribution to nation-wide
CO2 emissions. It also projected Antelope Mine’s
contribution to state-wide emissions going forward. Although
it did not discuss specific global impacts that would result from
additional emissions, the BLM explained that “[g]iven the state
of the science, it is not possible to associate specific actions
with the specific global impacts such as potential climate
effects.” JA 891. This conclusion is supported by draft
guidance from the Council on Environmental Quality (CEQ).5
See JA 1281 (“[I]t 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
5
The CEQ promulgates regulations that implement NEPA.
See 40 C.F.R. § 1500.1; see also Robertson, 490 U.S. at 355 (CEQ
regulations “are entitled to substantial deference”). As the BLM
concedes, the draft guidance is not an authoritative interpretation of
NEPA’s requirements entitled to deference but nevertheless we find
it useful.
17
as a reasonable proxy for assessing potential climate change
impacts, and provide decision makers and the public with
useful information for a reasoned choice among alternatives.”).
Because 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.
As for consideration of the eleven other pending lease
applications, the Appellants have not shown that approval of
the applications was “reasonably foreseeable.” Granted,
when WildEarth filed its brief in the district court in 2011, it
asserted that the eleven lease applications “certainly qualify as
‘reasonably foreseeable future actions,’ given that BLM has
already prepared EISs for all of these leases, recently held a
sale for one lease, recently issued RODs for three leases, and
has four RODs currently pending.” JA 57 (WildEarth brief in
district court); see also JA 989 (listing eleven applications).
But hindsight is 20-20. In December 2008, when the BLM
issued the FEIS, it had issued drafts EISs for only four of the
eleven leases; seven had not passed the “scoping” stage. See
http://www.blm.gov/wy/st/en/programs/energy/Coal_Resourc
es/PRB_Coal/lba_title.html (last visited December 15, 2013).
Because “projects in their infancy have uncertain futures,” it
was neither arbitrary nor capricious for the BLM to omit the
eleven proposed leases from its analysis of reasonably
foreseeable future actions. Theodore Roosevelt I, 616 F.3d at
513. (Hindsight bears this out: Although five of the leases
have now been sold, one was rejected and five are either
pending or have been suspended. See http://www.blm.gov/
wy/st/en/programs/energy/Coal_Resources/PRB_Coal/lba_titl
e.html (last visited December 15, 2013)). Instead of
assuming, as the Appellants do, that every pending lease
application will be approved, the BLM evaluated GHG
emissions as a percentage of state- and nation-wide emissions.
18
We think this approach suffices. See Mayo Found. v. Surface
Transp. Bd., 472 F.3d 545, 555–56 (8th Cir. 2006) (modeling
of emissions on both regional and national levels sufficient if
local modeling infeasible and requirements of 40 C.F.R.
§ 1502.22(b) satisfied); see also Morris v. NRC, 598 F.3d 677,
693 (10th Cir. 2010) (FEIS need not quantify amount of
radiation emitted from other sources if it considered effect of
radiation from past mining and proposed operation and
determined that issuance of new license would have only
negligible effect on amount of radiation emitted).
The Appellants also argue that the BLM failed to analyze a
reasonable range of alternatives to address GHG emissions and
climate change. The BLM discussed five separate
alternatives in the FEIS at length, however, and analyzed the
environmental impact of each. The Appellants nevertheless
protest that the FEIS did not adequately consider a list of
alternative ideas that WildEarth submitted in a single
paragraph in response to the FEIS. We sense a bit of
sandbagging here. The PRBRC participated in the scoping
hearing that preceded the draft EIS and submitted written
comments on the draft EIS and WildEarth submitted written
comments on the draft EIS that specifically addressed the
draft’s discussion of reasonable alternatives. At no point did
either WildEarth or the PRBRC mention the list of alternatives
WildEarth raised at the last minute. To be sure, the BLM
invited written comments on the FEIS, see 40 C.F.R.
§ 1503.1(b), and it had the opportunity to respond before it
issued the ROD. But WildEarth’s final comments did not
really respond to the FEIS; instead, they raised new issues.
We generally apply a deferential “rule of reason” to govern
“both which alternatives the agency must discuss, and the
extent to which it must discuss them,” Citizens Against
Burlington, 938 F.2d at 195 (emphasis in original) (quotation
marks omitted); see also Nevada, 457 F.3d at 93, and we think
19
the last-ditch, kitchen-sink nature of WildEarth’s suggestions
bears on the extent to which the BLM was required to address
them. See Vt. Yankee, 435 U.S. at 553–54 (“[A]dministrative
proceedings should not be a game or a forum to engage in
unjustified obstructionism by making cryptic and obscure
reference to matters that ‘ought to be’ considered and then,
after failing to do more to bring the matter to the agency’s
attention, seeking to have that agency determination vacated
on the ground that the agency failed to consider matters
‘forcefully presented.’ ”). The BLM responded to
WildEarth’s comments by referring WildEarth to the portion of
the FEIS that does address a full range of alternatives and
reminding WildEarth that the BLM does not issue mining
permits and therefore further alternatives could also be
addressed at the permitting stage. We think the BLM acted
reasonably by responding in this manner. We therefore agree
with the IBLA that the BLM satisfied its obligations under
NEPA to consider climate change. See Powder River Basin
Resource Council, 180 IBLA at 134.
2. Local Pollution
Next we consider the Appellants’ argument that the BLM
failed to take a hard look at the effect the lease developments
would have on local ozone levels. Ground level ozone is a
pollutant that forms when emissions of nitrogen oxides (NOx)
and volatile organic compounds react to sunlight. There are
several types of NOx, the most toxic being nitrogen dioxide
(NO2). Inhalation of ground level ozone is associated with
several health risks, which the FEIS discussed. While the
EPA has established National Ambient Air Quality Standards
(NAAQS) for ozone and NO2, see Coal. for Responsible
Regulation, Inc. v. EPA, 684 F.3d 102, 132 (D.C. Cir. 2012),
cert. granted in part 134 S. Ct. 418 (2013), there is no
corresponding NAAQS for NOx.
20
In the FEIS, the BLM noted that the area around the West
Antelope II tracts is in attainment—i.e., in compliance with
NAAQS—for all pollutants. JA 496, 789; see 42 U.S.C.
§ 7407(d)(1)(A)(ii); see also JA 932 (responding to comment
regarding compliance with ozone NAAQS). The BLM
projected that by 2010 emissions of NO2 would remain well
below NAAQS; further, the FEIS included an extensive
discussion of the current and projected emissions of NOx and
NO2. See JA 510–17; JA 680–81.6 The projection of NO2
emissions was based on modeling done for the Powder River
Basin Coal Review, “a regional technical study . . . to help
evaluate the cumulative impacts of coal and other mineral
development in the PRB.” JA 648; see JA 678. No separate
projection, however, was made for ozone. As the BLM
explained, it addressed ozone in its discussion of NOx
emissions because NOx is one of the main ingredients in the
formation of ground level ozone and NO2, in turn, is a type of
NOx. The BLM also noted that further modeling would be
done at the permitting stage to ensure compliance with state
and federal air quality standards.
The Appellants’ objections to the BLM’s analysis boil
down to a dispute about the adequacy of using projected
emissions of ozone precursors—like NOx and NO2—as
proxies by which to analyze the impact of future ozone levels.
They point to one report in the record observing that there is
not a one-to-one correlation between NOx and ozone levels
6
We agree with the Appellants that the BLM’s interchangeable
use of the terms NOx and NO2 can be confusing, especially where it
erroneously refers to a NAAQS for NOx. JA 514; see also BLM Br.
31–32 (making same error). But we do not think one typo in a
five-hundred page FEIS renders it insufficient where, as here,
context makes the point clear. Cf. US Magnesium, LLC v. EPA, 630
F.3d 188, 193 & n.3 (D.C. Cir. 2011) (typo irrelevant where meaning
could be readily ascertained).
21
because ozone produced per molecule of NOx emissions varies
considerably depending on local conditions. See JA 995.
But the same report observed that “[o]zone can be reduced by
controlling . . . NOx” and “[r]ural ozone is more sensitive to
NOx controls,” JA 994, which observation tends to confirm the
appropriateness of the BLM’s use of NOx as a proxy for ozone.
The Appellants also rely on an email from a BLM air
quality specialist opining on the adequacy of the FEIS. We
are dubious of the email’s value, particularly because the BLM
specialist began the email by noting that she had conducted “a
very cursory review of the ROD” and was “not very familiar
with the project and ha[d] not read the FEIS.” JA 1348; see
WildEarth Guardians v. Nat’l Park Serv., 703 F.3d 1178,
1186–87 (10th Cir. 2013) (emails from local or lower-level
agency representatives expressing diversity of opinion “will
not preclude the agency from reaching a contrary decision, so
long as the decision is not arbitrary and capricious and is
otherwise supported by the record”); cf. Nat’l Ass’n of Home
Builders v. Defenders of Wildlife, 551 U.S. 644, 658–59 (2007)
(inconsistent statements by agencies’ regional offices during
early stages of review do not render decisionmaking process
arbitrary and capricious where proper procedures are
followed). In any event, the email did not suggest that it was
inappropriate to rely on NOx models instead of modeling ozone
separately. It merely stated that the reasons for the lack of
ozone modeling should have been articulated better. JA 1348
(“[T]he response should include a concise explanation of
ozone modeling and its limitations . . . and why this pollutant
was not modeled.”). The Appellants do not question the
adequacy of the explanation for the absence of ozone
modeling, however, only the use of NOx as a proxy.
We conclude that the BLM satisfied its obligations under
NEPA. “ ‘The NEPA process involves an almost endless
series of judgment calls,’ and ‘the line-drawing decisions
22
necessitated by the NEPA process are vested in the agencies,
not the courts.’ ” Duncan’s Point Lot Owners Ass’n, Inc. v.
FERC, 522 F.3d 371, 376 (D.C. Cir. 2008) (quoting Coal. on
Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C. Cir.
1987)) (alterations omitted). It 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 NO2
emissions suffice.
We have considered—and rejected—the Appellants’ other
arguments challenging the sufficiency of the FEIS and
conclude that the FEIS complies with NEPA, the FLPMA and
the MLA. We therefore affirm the district court’s grant of
summary judgment to the defendants.
So ordered.