The High Country Citizens’ Alliance and WildEarth Guardians filed suit July 2 in federal court against the U.S. Forest Service over its decision to allow leasing of federal coal to Arch Coal (NYSE: ACI) in a roadless area next the West Elk longwall mine.
The suit was filed in the U.S. District Court for the District of Colorado.
The Sunset Roadless Area is a 5,800 acre area of undeveloped aspen and spruce forests, beaver ponds and streams that hugs the west flank of 12,700-foot Mount Gunnison and West Elk Wilderness in western Colorado, said the lawsuit. In the last year, however, the Forest Service and the U.S. Bureau of Land Management made three interrelated decisions that will dramatically damage the Sunset Roadless Area within a matter of days, the suit added.
- First, BLM and the Forest Service took action that culminated in March 2013 in the modification of two coal leases for the nearby West Elk mine. These modifications allow the mine to expand into 1,700 acres of the Sunset Roadless Area. The Forest Service predicted mining coal within the lease modifications will result in the bulldozing of 6.5 miles of new road and the flattening of forest and hillsides to build 48 wells pads in the roadless area, the suit said.
- The second decision, by the Forest Service alone, modified the national Roadless Rule, which generally prohibits road construction in Forest Service inventoried roadless areas such as the Sunset Roadless Area. In July 2012, the Forest Service issued a final rule for Colorado Roadless Areas superseding the national rule in this state. The Colorado Roadless Rule contains a loophole allowing road construction for coal mining within 19,100 acres of roadless forest in the North Fork Valley, including the Sunset Roadless Area. State officials said at the time that this exception was needed to protect the three existing coal mines in this area – West Elk, and the Bowie No. 2 mine of Bowie Resources and the Elk Creek mine of Oxbow Mining.
- Third, BLM and the Forest Service took action on June 27 to approve the mine’s “Sunset Trail Area Coal Exploration Plan” within the lease modifications area. The plan allows the mine operator to immediately bulldoze six miles of road up to 45 feet wide and scrape ten well pads into the Sunset Roadless Area so that drill rigs can extract core samples, enabling the mine to evaluate the underground coal seam in preparation for mining the lease modifications area.
Lawsuit claims these agency decisions violated various laws
The lease modifications and exploration plan decisions must be set aside because each violates federal law meant to protect the environment, the lawsuit said. The National Environmental Policy Act (NEPA) requires agencies to take a “hard look” at the risks and consequences of agency actions before they are approved.
“Here, the BLM and Forest Service failed to take the required hard look,” the suit said. “First, the agencies failed to disclose adequately the impacts of coal mining on adjacent lands that its Lease Modifications decision will unleash. Despite acknowledging that the Mine would be unable to access or mine the 8.9 million tons of coal on adjacent lands without the Lease Modifications, the agencies’ Final Environmental Impact Statement (EIS) fails to analyze the surface and other damage from mining on lands outside the leased area. Second, the Lease Modifications Final EIS fails to address the societal costs of mining and burning the coal within the lease modifications area. Third, the Final EIS fails to disclose the air pollution that will result from mining the Lease Modifications, failing to estimate the likely emissions of volatile organic compound (VOC) – pollutants that result in the formation of health-threatening smog. Fourth, the Final EIS fails to properly disclose the likely impacts of road and methane drainage well construction on the wilderness and roadless character of the Sunset Roadless Area. Finally, in approving the Exploration Plan, the agencies failed to fully disclose the environmental impacts of road well pad construction on recreation and wilderness character, or to analyze less damaging alternatives.”
The lawsuit said the agencies cannot rely on the Colorado Roadless Rule to permit road construction, because the rule itself was adopted in violation of the law.
The suit asks for various relief, including:
- Declare that defendants violated NEPA and other rules, including the Mineral Leasing Act and the Colorado Roadless Rule;
- Declare unlawful and issue an injunction setting aside defendants’ decisions approving and consenting to the lease modifications;
- Declare unlawful and issue an injunction setting aside defendants’ decisions approving and concurring to the Sunset Trail Area Coal Exploration Plan;
- Declare unlawful and issue an injunction setting aside defendant U.S. Forest Service’s decision adopting an exception to the Colorado Roadless Rule for road construction for coal mining; and
- Issue an injunction ordering defendants to not approve, consent to, or otherwise take action pursuant to lease modifications unless and until the defendants comply with NEPA, the Mineral Leasing Act, the remaining valid portions of the Colorado Roadless Rule, and regulations implementing these laws.
U.S. Mine Safety and Health Administration data shows that the West Elk mine produced nearly 6.9 million tons in 2012, up sharply from 5.9 million tons in 2011. The mine produced 1.2 million tons in the first quarter of this year.
Arch Coal’s March 1 Form 10-K annual report said about this operation: “West Elk is an underground mining complex located on approximately 17,800 acres in Gunnison County, Colorado. The West Elk mining complex extracts steam coal from the E seam. … The West Elk complex currently consists of a longwall, one continuous miner section and a loadout facility. We ship most of the coal raw to our customers via the Union Pacific railroad.”