Guardians v. Bernhardt

          ORDER

          R. BROOKE JACKSON, UNITED STATES DISTRICT JUDGE

         In this case before the Court, the plaintiff environmental organizations seek judicial review of a decision by the Office of Surface Mining Reclamation and Enforcement (“OSM”). The decision recommended that the Secretary of Interior approve a mining plan authorizing the mining of federally owned coal on public lands by defendant Mountain Coal Company (“MCC”). Mining is scheduled to begin in January of 2020 in a part of the North Fork Valley called the Sunset Roadless Area. Plaintiffs allege that the agency decision failed to comply with the National Environmental Policy Act (“NEPA”) and the Administrative Procedure Act (“APA”) and must be set aside. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701-706.

         BACKGROUND

         A. The National Environmental Policy Act (“NEPA”)

         The National Environmental Policy Act does not prescribe any substantive environmental standards per se. Rather NEPA is a procedural statute designed to ensure public participation and transparent decision-making by federal agencies. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Before taking major action, NEPA requires federal agencies to prepare an Environmental Impact Statement (“EIS”). 42 U.S.C. § 4332(2)(C). An EIS must take a “hard look” at the potential environmental impacts of the agency's proposed action, including direct, indirect, and cumulative impacts. Robertson, 490 U.S. at 350; New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683, 713 (10th Cir. 2009).

         “The EIS must also ‘rigorously explore and objectively evaluate all reasonable alternatives' to a proposed action in comparative form, so as to provide a ‘clear basis for choice among the options.'” WildEarth Guardians v. U.S. Forest Serv., 828 F.Supp.2d 1223, 1236 (D. Colo. 2011) (quoting 40 C.F.R. § 1502.14). “Reasonable alternatives are those which are ‘bounded by some notion of feasibility,' and, thus, need not include alternatives which are remote, speculative, impractical, or ineffective.” Id. at 1236-37 (quoting Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1172 (10th Cir. 2002) and citing Custer Cnty. Action Ass'n v. Garvey, 256 F.3d 1024, 1039-40 (10th Cir. 2001)). “The EIS also must briefly discuss the reasons for eliminating any alternative from detailed study.” Id. (citing 40 C.F.R. § 1502.14(a)).

         Under NEPA, an agency may adopt pre-existing NEPA analyses prepared by other agencies. 43 C.F.R. § 46.120(c). The adopting agency must determine, “with appropriate supporting documentation, that it adequately assesses the environmental effects of the proposed action and reasonable alternatives.” Id. Supporting documentation “must include an evaluation of whether new circumstances, new information or changes in the action or its impacts not previously analyzed may result in significantly different environmental effects.” Id. To determine whether alleged deficiencies in an EIS merit reversal, the Court applies “a rule of reason standard (essentially an abuse of discretion standard).” Utahns for Better Transp., 305 F.3d at 1163.

         B. The Mineral Leasing Act (“MLA”) and Surface Mining Reclamation and Control Act (“SMRCA”)

         The MLA allows the Secretary of the Interior to lease federal coal resources. See 30 U.S.C. §§ 181, 201. The Bureau of Land Management (“BLM”) largely implements this function. The MLA also authorizes the Secretary to approve proposed mining, but if that action “might cause significant disturbance of the environment, ” the operator must submit a plan to the Secretary for approval. 30 U.S.C. § 207(c). OSM has been charged with preparing and submitting to the Secretary a decision document “recommending approval, disapproval or conditional approval of the mining plan.” 30 C.F.R. § 746.13.

         Under the SMRCA, OSM must base its recommendation on, among other things, information prepared in compliance with NEPA, “comments and recommendations or concurrence of other federal agencies, as applicable, and the public, ” “findings and recommendations of the Bureau of Land Management with respect to the resource recovery and protection plan and other requirements of the lease and the Mineral Leasing Act.” 30 C.F.R. § 746.13.

         C. The Sunset Roadless Area

         Until recently, the Sunset Roadless Area contained 5, 800 acres of undeveloped forest and scrub land in a part of western Colorado called the North Fork Valley. Mount Gunnison and the West Elk Wilderness lie to the east. In High Country Conservation Advocates v. United States Forest Serv. (High Country I), I described this area as “undoubtedly wild, relatively empty, and home to diverse flora and fauna.” 52 F.Supp.3d 1174, 1183 (D. Colo. 2014). In addition to serving as a habitat for numerous species of wildlife, the area also draws recreational visitors. Id.

         Next door to the Sunset Roadless Area sits the West Elk coal mine. This underground mine has been operating since 1981, mostly beneath public lands managed by the Forest Service. See High Country I, 52 F.Supp.3d 1174. Since that case was decided, coal exploration activities began in late 2018, and construction of mining sites in the Sunset Roadless Area has commenced.

         As MCC continues to expand into the Sunset Roadless Area under the new mining plan, it will build approximately 8.4 miles of new roads and install 43 methane drainage wells throughout this natural landscape. MCC's methane drainage wells will release methane, a powerful greenhouse gas, directly into the atmosphere. The United States Forest Service (“USFS”) estimated that the total methane released from the proposed expansion would be approximately 11.91 million tons. AR 000320.

         D. The Parties

         Plaintiffs in this case are a collection of non-profit environmental groups who identify as “conservation groups.” ECF No. 1 at 4. Plaintiff WildEarth Guardians is a non-profit organization “dedicated to protecting and restoring the wildlife, wild places, and wild rivers throughout the American West.” Id. at 4-5. Since 1977, Plaintiff High Country Conservation Advocates has operated in the Gunnison area, working to address issues “that affect Gunnison County's clean air, clean water, public lands, and health wildlife.” Id. at 5. Plaintiff The Center For Biological Diversity is a non-profit environmental organization that “uses science, policy, and law to advocate for the conservation and recovery of species on the brink of extinction and the habitats they need to survive.” Id. Plaintiff Wilderness Workshop is a Colorado-based nonprofit “engaged in research, education, legal advocacy and grassroots organizing to protect the ecological integrity of local public lands.” Id. at 6. Members of these organizations recreate in the Sunset Roadless Area and nearby public lands; they visit for the opportunity to enjoy the solitude and quiet of the area as well as the opportunity to hike, camp, and observe wildlife. Id.

         Plaintiff Sierra Club is a national environmental non-profit group that shares similar conservation goals as the other plaintiffs in this case. In addition, the Sierra Club is dedicated to “practicing and promoting the responsible use of the Earth's resources and ecosystems.” Id.

         Most of these groups participated in the public comment process associated with agency approvals of modifications to the West Elk mine lease and the coal exploration plan of portions of the Sunset Roadless Area. See High Country I, 52 F.Supp.3d 1174 and High Country Conservation Advocates v. U.S. Forest Serv. (High Country III), 333 F.Supp.3d 1107 (D. Colo. 2018) (decision currently on appeal). Conservation groups subsequently brought multiple suits against BLM and USFS for their failure to comply with NEPA in those decisions. Id. Though OSM did not solicit public comments prior to its approval of the mining plan at issue in this case, conservation groups submitted an unsolicited letter registering concerns regarding OSM's proposed action.

         The defendants come from two groups. First there are the federal defendants, Secretary of Interior David Bernhardt, OSM, David Berry, Regional Director of OSM's western region, Glenda Owens, Director of OSM, Joseph Balash, Assistant Secretary of Land and Minerals Management of the Department of Interior. ECF No. 1 at 8. OSM's decision to recommend approval of the mining plan is the basis of this action.

         Second, there is MCC. MCC, a subsidiary of Arch Coal, owns leases in West Elk Mine and petitioned OSM for the mining plan approving its expansion of the West Elk Mine. After this suit was filed, MCC filed an unopposed motion to intervene as a respondent, claiming its “clear entitlement to intervention as of right.” ECF No. 11 at 2. The motion was granted on July 8, 2019. ECF No. 18.

         E. The Agency Decision

         The decision challenged here is OSM's recommendation that the Assistant Secretary of Land and Minerals Management approve the proposed mining plan and OSM's accompanying record of decision (“ROD”) explaining its recommendation. AR 000004; AR 000014-37. The challenge also significantly implicates OSM's NEPA Adequacy Review Form (NARF) in which it evaluated the proposed action's compliance with NEPA. AR 000038-44. Before recommending approval, OSM did not release draft documents for public review or hold a formal public comment period. The decision and the supporting ROD incorporated by reference other agencies' environmental analysis documents in order to comply with NEPA. In particular, OSM adopted and heavily relied on the findings made in USFS's “supplemental and final” EIS (“SFEIS”) made in response to this Court's ruling in High Country II.^[1] AR 000038; AR 000015.

         PROCEDURAL BACKGROUND

         Though plaintiffs initiated this suit in July of 2019, this case has an extensive history going back to 2009. MCC first sought to expand the West Elk mine in 2009. In 2012 and 2013, USFS and BLM issued several decisions allowing the expansion to move forward. In 2012 USFS adopted the Colorado Roadless Rule which included an exception for the North Fork Coal Mining Area allowing the construction of temporary coal mine roads in the Sunset Roadless Area, among other areas. 77 Fed. Reg. 39, 576, 39, 576 (July 3, 2012). Id. Also in 2012, USFS consented to, and BLM subsequently approved of, proposed lease modifications to MCC's lease of the West Elk mine. High Country I, 52 F.Supp. at 1184. In 2013, BLM approved a coal exploration plan. Id. at 1185.

         In 2014, conservation groups challenged these actions in High Country Conservation Advocates v. U.S. Forest Service (High Country II), 67 F.Supp.3d 1262 (D. Colo. 2014). This Court found that several agency decisions violated NEPA by failing to account for the environmental costs of the action in their cost/benefit analysis. Id. at 1195-97. This Court vacated the exploration plan as well as the lease modifications, and MCC was enjoined from actions taken pursuant to those decisions. Id. at 1266-67.

         In 2017, the agencies began again. BLM and USFS reinstated the coal mine exception to the Colorado Roadless Rule, 82 Fed. Reg. 9, 973-01 (Feb. 9, 2017), and initiated proceedings to lease a portion of the Sunset Roadless area to MCC. They also issued the SFEIS, which contained new analysis conducted in attempted compliance with the decision in High Country II. AR 000190. Conservation groups again challenged these and other related agency actions in High Country III, 333 F.Supp.3d 1107 (D. Colo. 2018). The district court upheld the agency actions, and conservation groups appealed to the Tenth Circuit. High Country Conservation Advocates v. U.S. Forest Serv., No. 18-1374 (10th Circuit appeal filed Sept. 11, 2018).

         Following High Country III, OSM recommended the approval of MCC's proposed mining plan and issued an ROD explaining its decision. AR 000004; AR 000014-000037. With mining scheduled to begin in early 2020, plaintiffs filed this suit. The Court granted MCC leave to intervene in the case on July 8, 2019. Plaintiff's filed their opening brief on August 19, 2019. Oral arguments on the merits were heard before this Court on October 17, 2019.

         ANALYSIS

         By law, this Court may only set aside an agency decision if after a review of the entire administrative record the Court finds that the decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002).

An agency's decision is arbitrary and capricious if the agency (1) entirely failed to consider an important aspect of the problem, (2) offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, (3) failed to base its decision on consideration of the relevant factors, or (4) made a clear error of judgment. Deficiencies in an EIS that are mere “flyspecks” and do not defeat NEPA's goals of informed decisionmaking and informed public comment will not lead to reversal.

New Mexico ex rel. Richardson, 565 F.3d at 704 (internal quotation marks and citations omitted). Plaintiffs bear the burden of proof on the question of whether an agency's decision was arbitrary or capricious. Citizen's Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008) (noting that the agency's decision is presumed valid). The agencies' decisions-as long as they are neither arbitrary nor capricious-are entitled to deference, and this Court cannot substitute its own judgment for the agency's. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 555 (1978). Deference to the agency is also “especially strong where the challenged decisions involve technical or scientific matters within the agency's area of expertise.” Wyoming v. U.S. Dep't of Agric., 661 F.3d 1209, 1246 (10th Cir. 2011) (quoting Morris v. U.S. Nuclear Regulatory Comm'n, 598 F.3d 677, 691 (10th Cir. 2010)). But as I noted in High Country I, the Court will not “defer to a void.” Oregon Natural Desert Ass'n v. Bureau of Land Mgmt., 625 F.3d 1092, 1121 (9th Cir. 2010). “In addition to requiring a reasoned basis for agency action, the arbitrary or capricious standard requires an agency's action to be ...