Court Provides Blueprint for Challenging Fossil Fuel Projects

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By Stephen Lee

A district court decision stopping the expansion of a Montana coal mine provides a blueprint for environmental advocates to block other coal, oil, and gas projects across the country.

“The decision has national significance, and it can and will be applied in other cases that we are bringing to challenge the federal government’s analysis of coal development, oil and gas development, and other fossil fuel projects,” Laura King, staff attorney at the Western Environmental Law Center, told Bloomberg BNA.

Especially vulnerable could be two Bureau of Land Management decisions, King said. One, issued in 2015, made more than 80 billion tons of coal and nearly 10 million acres of land available for federal oil and gas leasing in Wyoming’s Powder River Basin. The second approved 147,000 acres for oil and gas leasing in Colorado.

The U.S. District Court for the District of Montana found Aug. 14 that the Office of Surface Mining Reclamation and Enforcement didn’t fully consider the impacts of Signal Peak Energy’s proposed expansion of Bull Mountain Mine in Montana ( Mont. Envtl. Info. Ctr. v. U.S. Office of Surface Mining , 2017 BL 283856, D. Mont., No. CV 15-106-M-DWM, 8/14/17 ).

The court ruled OSMRE violated the National Environmental Policy Act by focusing on the benefits of the mine plan while minimizing the environmental and social impacts of trains transporting coal to ports in Canada and on the Great Lakes, as well as the air pollution emissions of coal combustion.

Had it been approved, Signal Peak’s mine would have been the biggest underground coal mine in the country, based on production, according to the Sierra Club.

Strategy’s Potential

Hayden Baker, an attorney with Sullivan & Worcester LLP, told Bloomberg BNA that the decision “really shows how courts—and, by extension, nongovernmental organizations and states—can continue to use the other mechanisms at their disposal to slow down infrastructure in mining.”

Rena Steinzor, an administrative law professor at the University of Maryland, said the decision shows how government is supposed to work.

“That use of the separation of powers is an absolute model,” Steinzor told Bloomberg BNA. “There are three branches, and they are all supposed to provide checks and balances on each other. And [Judge Donald] Molloy checked and he balanced. The courts are particularly important in interpreting statutes, because otherwise we just have the agencies themselves doing it. “

But attorney Baker also cautioned that one impediment to environmentalists using the strategy again is that each case is different and highly contingent on specific sets of facts.

“What’s more important is that they scored a win here and will therefore push their strategy further,” he said. “Any case will be dependent on how good a job the agency or proponent did in justifying their National Environmental Policy Act Review. So yes, while opponents will push forward with this strategy, it’s hard to gauge the precedential value this has because it’s always so fact-specific.”

Signal Peak Responds

Mike Dawson, a spokesman for Signal Peak Energy, told Bloomberg BNA that the company will be “evaluating all of our options” in the coming weeks and months.For now, the mine remains open, and no workers have been laid off, Dawson said.

“Depending on a number of factors, this court decision could affect some operations in the future,” Dawson said.

Luke Popovich, a spokesman for the National Mining Association, told Bloomberg BNA that, “aside from the absence of any legal obligation to consider these wider costs, there is no actionable, reliable value in doing so.”

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

For More Information

The U.S. District Court for the District of Montana mine decision can be found at http://src.bna.com/rJz

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