Enviro groups able to add second Peabody lease to court appeal

A federal judge in Wyoming on Nov. 15 allowed WildEarth Guardians and other environmental groups to add the June leasing by a Peabody Energy (NYSE: BTU) affiliate of the North Porcupine coal tract in the Wyoming Powder River Basin to a lawsuit over the U.S. Bureau of Land Management coal leasing program.

Plaintiffs WildEarth Guardians, Powder River Basin Resource Council and the Sierra Club filed suit originally in the U.S. District Court for the District of Colorado against the U.S. Forest Service and some of its officers, challenging their consent to a BLM decision to lease the South Porcupine tract within the Thunder Basin National Grassland. The case was then transferred on April 24, at the request of the defendants, to the U.S. District Court for the District of Wyoming.

Plaintiffs allege, among other things, that defendants’ consent rested on a legally inadequate environmental impact statement, thus rendering their consent to the BLM lease legally deficient.

The plaintiffs more recently asked the court to let them challenge the legality of the defendants’ consent to BLM’s lease of the North Porcupine tract, which is near the South Porcupine tract. Plaintiffs did not challenge the North Porcupine tract in their original petition because defendants’ consent to the BLM lease of the North Porcupine tract did not become final until after plaintiffs had filed their original lawsuit.

“The Court grants Plaintiffs’ motion for leave to file a supplemental pleading because there’s no good reason not to,” wrote Judge Alan Johnson in his Nov. 15 decision. “Regarding undue delay, the Court finds that allowing supplementation would not cause any significant delay in this case because it is still early in the proceeding. Defendants have yet to compile the Administrative Record and the parties have yet to agree on a briefing schedule. Regarding prejudice, the Court finds that Defendants will not be prejudiced by allowing Plaintiffs to supplement their pleading because adding the North Porcupine tract will require adding only a modest number of new documents to an otherwise overlapping record. The Court rejects Defendants’ argument that allowing supplementation will confuse the issues in this case and it agrees with Plaintiffs that, ‘because the claims are the same for each consent decision and the court will review the same environmental analysis document for both agency actions, there is no potential for confusion.’ Regarding bad faith, the Court finds that Plaintiffs’ motion is not a bad faith effort to dilute or frustrate these proceedings; rather, it is a reflection of Plaintiffs’ desire to resolve their disputes with Defendants in a timely and efficient manner.”

The BTU Western Resources unit of Peabody Energy lodged a winning bid with BLM of $793.3m on June 28 for the North Porcupine coal reserve, located next to its North Antelope Rochelle mine in Wyoming, the largest coal mine in the U.S. BLM said the Peabody bid of $793,270,310.80 worked out to $1.10 per mineable ton for this Powder River Basin coal. This bid was the only one offered in the auction.

The 6,364.28-acre North Porcupine tract contains an estimated 721.15 million tons of surface-mineable coal. This tract is adjacent to both the North Antelope Rochelle mine and Peabody’s undeveloped School Creek mine, BLM noted.

Peabody on May 17 had leased from BLM 402 million tons of ultra-low-sulfur coal reserves adjacent to North Antelope Rochelle in the South Porcupine tract. The company submitted the successful, lone bid of $1.11 per mineable ton for that tract. It had applied for North Porcupine and South Porcupine under one lease application, but BLM decided to split them up and hold two auctions in case an outside bidder was interested in one of the tracts but not both.

North Antelope Rochelle is the largest coal mine in the world, shipping 109 million tons of coal in 2011.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.