Interior argues against lawsuit designed to shut down federal coal leasing

The U.S. Department of the Interior and its Bureau of Land Management told a federal court on Jan. 30 that an effort to halt all federal coal leasing while an old environmental review of that leasing is updated should be dismissed out of hand.

Environmental groups including Friends of the Earth filed the lawsuit in November 2014 at the U.S. District Court for the D.C. Circuit. The first claim in that case asserts arbitrary conduct under the Administrative Procedure Act based on a supposed failure of the defendants to supplement its environmental analysis of a rule that has been in place for over 35 years and has not recently gone through any modifications. The second claim asserts that a supplemental analysis in the form of an environmental impact statement (EIS) has been “unlawfully withheld or unreasonably delayed” under the APA.

Both claims should be dismissed, said Interior, BLM and the named agency officials in the lawsuit. “Taking the allegations of fact as true, Plaintiffs fail to state a cognizable claim under APA section 706(2)(A) because the complaint fails to identify final agency action, as the APA requires,” they said. “Plaintiffs’ claim under APA section 706(1) is also fundamentally flawed, because the Complaint fails to identify a mandatory duty to perform a discrete act.”

Based on an alleged violation of NEPA, the plaintiffs ask the court to enjoin federal coal leasing nationwide, until Interior prepares a supplement to an EIS it prepared in 1979.

“The Complaint contends Interior must supplement the 1979 EIS, some thirty-five years later, to account for new information regarding climate change, on the theory that the 1979 EIS ‘continues to govern the federal coal management program.’ It does not. As explained herein, Plaintiffs misapprehend the EIS’s force and effect under the law. No changes to the 1979 coal management regulations have been proposed. Thus, no new agency action – a requirement for a 706(2) claim – has occurred. Moreover, every leasing decision Interior makes under the [Mineral Leasing Act] is subject to individual NEPA analysis, as the 1979 regulations require to this very day. Plaintiffs identify no event that triggers a legal duty to supplement the 1979 EIS prepared exclusively for the issuance of the 1979 rule. In such circumstances, Plaintiffs fail to state a cause of action under either section 706(1) or 706(2)(A), because no new agency action has occurred (other than action independently subject to NEPA) and because there exists no duty to supplement the long-ago completed 1979 rulemaking and EIS. The agency neither wrongly declined to prepare a supplement, nor breached a legal duty to do so.”

BLM leases to private industry little in the way of coal reserves in the eastern U.S., but much of the coal reserves in the western U.S., including in the highly-productive Powder River Basin in Wyoming and Montana, is federal coal leased from that agency. Since coal-fired power plants emit a lot of CO2, environmental groups see this as a collateral way to impose restrictions on the power industry, making coal even more burdensome for them to use.

The agencies noted that there are other ways to appeal besides a court challenge. “Other avenues for addressing their concerns are still available upon dismissal. If Plaintiffs believe Interior is not meeting its responsibilities under NEPA to examine the impacts of federal coal leasing, then they may avail themselves of the APA’s waiver of sovereign immunity in section 702 of the APA by challenging individual leasing decisions, rather than attempting to upend the entire coal management program.”

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.