Judge, citing climate risks, halts Mont. mine expansion

Source: Amanda Reilly, E&E News reporter • Posted: Wednesday, August 16, 2017

A federal judge this week halted the expansion of a coal mine in Montana, finding that regulators failed to adequately assess the project’s climate impacts.

Senior Judge Donald Molloy of the U.S. District Court for the District of Montana threw out the environmental assessment prepared by the Office of Surface Mining Reclamation and Enforcement for the project.

“The Enforcement Office failed to take a hard look at the indirect and cumulative effects of coal transportation and coal combustion,” Molloy wrote.

At issue is Signal Peak Energy LLC’s Bull Mountains Mine No. 1, an underground coal mine about 30 miles north of Billings. In 2013, the company requested approval to expand operations at the site into nearly 2,540 acres of remaining federal coal.

The expansion would have made the site the largest underground coal mine in the United States in terms of annual production. The mine was expected to produce up to 15 million tons, up from its 2014 level of 10.5 million tons.

The Montana Environmental Information Center, Montana Elders for a Livable Tomorrow and the Montana chapter of the Sierra Club sued, alleging several violations of the National Environmental Policy Act, which requires federal agencies to analyze the environmental impacts of their actions.

OSMRE prepared an environmental assessment of the mine’s planned expansion, but the groups said the agency failed to adequately consider the indirect and cumulative effects of coal transportation, coal exports and coal combustion, as well as foreseeable greenhouse gas emissions.

Regarding coal transportation, the Montana groups alleged that OSMRE didn’t assess the indirect effects of coal trains, including diesel emissions, noise, vibrations, rail congestion and coal dust.

For its part, the agency said it had calculated rail miles and resulting greenhouse gas emissions but was not required to consider other impacts.

It premised the calculations on prior analyses estimating that the mine would produce between 3.3 million tons and 5 million tons per year, requiring up to three coal trains per day.

But Molloy, a Clinton appointee, knocked down the agency’s argument that its analysis was sufficient, noting that the annual production at the expanded coal mine was expected to be between two and five times greater than OSMRE’s prior estimates.

“With that substantial difference in mind,” the judge wrote, “it cannot be said that the Enforcement Office took a hard look at the effects of transporting the coal.”

Molloy also shot down OSMRE’s arguments that analyzing coal transportation is speculative because travel routes and associated effects cannot be predicted.

The court noted that OSMRE knew where the mine intended to send its coal and what rail routes it would use because “there are only a limited number of rail routes for coal transportation” out of the mine.

And prior studies have evaluated the current and potential impacts of coal trains. “Such analysis is possible and not merely speculative,” Molloy wrote.

‘Thumb on the scale’

In the lawsuit, the groups had also argued that OSMRE failed to analyze both non-greenhouse-gas pollution impacts of coal combustion and the indirect and cumulative impacts of greenhouse gas emissions.

As with transportation, OSMRE said its analysis would be speculative because of uncertainty over combustion locations, transport routes and availability of emission controls.

Molloy acknowledged that OSMRE did calculate that the expansion would result in an extra 23.16 million metric tons of emissions for an additional nine years compared with the mine’s existing footprint.

But the judge agreed with the plaintiffs that the federal agency was arbitrary and capricious in its failure to then quantify the costs of those emissions.

The agency concluded that there would be zero effects from those emissions because other coal would be burned in its stead.

“This conclusion is illogical,” Molloy wrote, “and places the Enforcement Office’s thumb on the scale by inflating the benefits of the action while minimizing its impacts.”

Along with vacating OSMRE’s environmental analysis, Molloy remanded the matter back to agency. He also halted the mining of federal coal within the expansion area pending compliance with NEPA.

Most coal mining states issue Surface Mining Control and Reclamation Act permits with limited OSMRE supervision, but the federal agency approves mine plans when federal coal is involved. Environmentalists have in recent years moved to scrutinize that process.

The court’s opinion cites case law in which courts have previously ruled that agencies wrongly did not take into account emissions from future mining operations and coal combustion.

More than a dozen lawsuits in the past five years have challenged federal reviews of fossil fuel extraction and infrastructure projects because of failure to consider upstream and downstream emissions.

Trump policy

As cited in the opinion, in 2014 the U.S. District Court for the District of Colorado faulted environmental impact statements prepared by the Forest Service in conjunction with the Bureau of Land Management for road construction for coal-related activities and adding newly opened lands to existing coal leases.

This latest decision in the Montana mine case comes as the Trump administration has backed away from Obama administration attempts to incorporate climate change into NEPA analyses.

The White House Council on Environmental Quality has rescinded a guidance, for example, that formally guided agencies to consider “indirect” climate effects of major federal actions.

Molloy wrote that the NEPA process is key in weighing the pros and cons of federal actions. “It is designed not only to make mining opportunities available,” the judge wrote, “but also to ensure the environment is protected by considerations of relevant issues and materials before a permit is issued or modified.”

Laura King, a staff attorney at the Western Environmental Law Center, said in an email that today’s decision has “national significance” and is “moving us in the right direction” — even if it is not binding in other courts.

“We will be citing it in ongoing litigation throughout the West in which we challenge federal agencies for failure to adequately consider environmental and climate impacts,” she said.

Click here to read the court’s opinion.