United States: Colorado District Court Vacates Approvals For Mining Exploration Due To Failure To Adequately Consider Greenhouse Gas Emissions

Last Updated: November 13 2014
Article by Jane Borthwick Story

On June 27, 2014, the United States District Court for the District of Colorado held that several federal agencies violated the National Environmental Policy Act ("NEPA") for failing to disclose projected greenhouse gas ("GHG") emissions associated with expanded mining exploration activities in the North Fork Valley in western Colorado. High Country Conservation Advocates v. U.S. Forest Serv., No. 13-cv-01723-RBJ (D. Colo. June 27, 2014).

The environmental-group plaintiffs alleged multiple failures by the federal agencies to adequately disclose the effects of GHG emissions in environmental impact statements ("EISs") required by NEPA. One such failure related to lease modifications approved by the Bureau of Land Management and the U.S. Forest Service, which added new lands to a preexisting mine. While the EIS for the lease modifications contained anticipated economic benefits, it did not discuss the impacts of anticipated GHG emissions, stating that they could not be quantified or predicted. The court held that including estimated benefits while excluding estimated costs due to GHG emissions was arbitrary and capricious, particularly when "the social cost of carbon protocol" is a tool available to estimate such costs.

Plaintiffs also alleged failures to adequately disclose the effects of GHG emissions relating to the approval of a rule that provided an exemption for temporary road construction to enable coal mining and mining exploration in the North Fork Valley ("North Fork Exception to the Colorado Roadless Rule"). The first alleged failure associated with this rule was that, although the EIS indicated that increased methane emissions were a foreseeable result of the rule, it did not quantify the emissions or analyze their impacts because those emission rates purportedly were too speculative and depended on mine-specific factors that could not be understood until actual exploration occurs. The court held that the failure to calculate the reasonably foreseeable GHG emissions associated with the rule was arbitrary because (i) "[s]uch projections were possible as demonstrated by an expert opinion that used data from existing North Fork mines to extrapolate expected emissions under the extended mine lives enabled by the [rule]"; and (ii) the EIS included "a detailed economic analysis of the benefits associated with the rule.

Plaintiffs further asserted that the EIS failed to estimate GHG emissions associated with combustion of coal facilitated by the rule. The agencies argued that they did not include an estimate because (i) it would be too speculative, given varying degrees of power plant efficiency; (ii) new technology, like carbon capture and sequestration, might be available by the time the coal is burned; and (iii) "the overall amount of coal consumed by the marketplace would remain unchanged because there are perfect substitutes for North Fork Coal." The court found these explanations unsupported by the record. Given that the EIS contained detailed estimates of the amount of coal to be mined, it would not be too speculative to estimate the emissions. In addition, the court found it was improper to rely on "unsupported assumptions that future mitigation technologies will be adopted." It also found that the increased supply of coal would affect the demand for coal relative to other fuel sources, such that the reasonably foreseeable effect of emissions from the burning of that additional coal must be analyzed.

Plaintiffs lastly argued that the EIS for the North Fork Exception to the Colorado Roadless Rule failed to address an expert report submitted by plaintiffs to the federal agencies. NEPA requires federal agencies to respond to "any responsible opposing view." 40 C.F.R. § 1502.9(b). The expert report submitted by plaintiffs argued that consumers would be unable to find a perfect substitute for the coal, and, therefore, approval of the rule would lead to increased GHG emissions. The court held that the expert report was a "responsible opposing view," and the agencies' failure to address it was a violation of NEPA.

Although the court held that the agencies violated NEPA, it postponed its decision on remedies to allow the parties to meet and confer and submit additional briefing. After briefing was completed, on September 11, 2014, the court ordered that the lease modifications be vacated, finding that "vacation will best serve the deliberative process mandated by NEPA." With respect to the North Fork Exception to the Colorado Roadless Rule, the court found that it could be severed from the rest of the Colorado Roadless Rule. Accordingly, the court vacated the North Fork Exception to the Colorado Roadless Rule and allowed the remainder of the rule to stand. The impact of the court's decision on future rulemaking regarding the North Fork Valley remains to be seen.

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Jane Borthwick Story
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