Judge slams OSM over lack of public notice during permitting of Colorado coal mines

A federal court on May 8 ruled that the U.S. Office of Surface Mining’s approval to expand two coal mines in Northwestern Colorado were illegally approved, upholding a lawsuit filed by WildEarth Guardians challenging the government’s failure to include a more complete environmental review.

The ruling out of the U.S. District Court for the District of Colorado relates to the Colowyo and Trapper surface coal mines, which fuel Tri-State Generation and Transmission’s Craig coal-fired power plant.

“This ruling is a major victory for the American public, for our climate, and for our clean air,” said Jeremy Nichols, WildEarth Guardians’ Climate and Energy Program Director, in a May 11 statement. “Our federal government can no longer turn a blind eye to the public and the need to safeguard our health and environment.” 

Guardians said this is the latest milestone in holding the Interior Dept. accountable to the climate impacts of coal mining approvals. Although the Obama Administration is working to reduce carbon emissions, Interior is approving more coal mining throughout the western U.S. that threatens to undermine efforts to combat climate change, it said. In March, a federal judge in Colorado overruled a coal mining approval in New Mexico. Last summer, WildEarth Guardians and other groups successfully stopped an Interior-approved coal mining plan in western Colorado. WildEarth Guardians also has pending lawsuits over similar mining approvals in New Mexico and in Montana. 

At issue here, in 2006, Colowyo submitted a permit application package seeking a permit revision to three federal coal leases. The permit revisions increased the approved mining area by 6,050 acres, adding 5,219 acres of federal coal for recovery. OSM prepared an Environmental Assessment (EA) that referenced older National Environmental Policy Act (NEPA) and non-NEPA documents and concluded that the modification would not result in significant environmental impacts. Accordingly, OSM issued a Finding of No Significant Impact (FONSI) in May 2007.

In 2007, Trapper submitted a permit application package seeking a permit revision covering two federal coal leases. The permit revision anticipated recovery of approximately 8.1 million tons of federal coal, disturbing 312 acres of land previously affected by a landslide. OSM prepared an EA which, like the Colowyo EA, referenced older NEPA and non-NEPA documents to conclude that the modification would not result in significant environmental impacts. In October 2009, OSM issued a FONSI and recommended that the modified mining plan be approved. In November 2009, the Assistant Secretary of the Interior (acting on behalf of the Secretary) approved the mining plan.

Judge says OSM gave zero public notice during these environmental reviews

Wrote Judge R. Brooke Jackson in the May 8 ruling: “OSM gave no public notice and sought no public input while drafting the Colowyo and Trapper EAs. After completing them, OSM placed both EAs and their related FONSIs in its public reading room located in Denver, Colorado without providing notice that it had done so.”

The judge added: “Trapper and Colowyo argue that this case is moot because their projects are either complete or substantially complete such that vacating and remanding the permit approvals would have no effect but to delay mine reclamation. I agree that vacatur makes no sense as to the Trapper mine: the coal that is the subject of the plan revision at issue has been removed. However, even as to Trapper, the matter is not entirely moot. At a minimum the Court can, and in this order does, address declaratory relief. The status of mining at the Colowyo mine is different. There are approximately 12 million tons of coal subject to the mining plan revision that have yet to be removed, although the infrastructure that accounts for part of the environmental harm apparently has been completed. Obviously, this Court could stop the mining at Colowyo as well as provide declaratory relief.

“Evidently, there was a delay of several years between the approvals of the mining plan revisions and the filing of this lawsuit. However, that cannot be blamed on Guardians. OSM did not comply with its most basic NEPA duty of providing public notice. Upon learning of the mining plan approvals, Guardians put their petition together and filed it reasonably promptly.

“Nor am I persuaded that Colowyo and Trapper were unduly prejudiced by the ‘delay’ in the filing of the suit. Colowyo states that if mining in the revision area had been suspended early on, Colowyo could have continued to mine coal in a previously permitted area while the legal issues were hashed out. The fact remains, however, that both Trapper and Colowyo have mined coal in the revision area since the revisions were approved. Considering both delay and prejudice (and the remedy discussed below), the Court does not find that the equitable defense of laches is applicable.

“OSM did not comply with its public notice and involvement obligations in two distinct ways. First, it failed to notify the public of and involve the public in its review of the permit plan modifications. It then proceeded to issue a completed EA and Finding of No Significant Impact (‘FONSI’) for each site without notifying the public of their availability. Each of these omissions is in violation of NEPA.

“OSM is responsible for supplementing reports when there have been ‘significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.’ Trapper argues that because the impacts of mining are not new, the change in air quality standards does not demand that OSM conduct additional analysis with respect to direct effects on air quality. The Court disagrees. First, although the defendant parties do not acknowledge that the report itself is outdated, it was never intended to assess or predict pollutant concentrations past 1990. Second, a change in air quality emissions standards would, at a minimum, require OSM to consider how the new standards impact its analysis of whether a proposed action ‘significantly’ affects the quality of the human environment. More stringent standards would arguably make the same action more significant. Finally, Colowyo argues that because the state issued an air quality permit, any air quality assessment performed by OSM would be duplicative. But under NEPA, federal agencies must take a hard look at the environmental impacts of a proposed action even if the action is compliant with other laws and regulations.”

On the issue of any court order related to remaining mining at Colowyo, the judge wrote that “the Court is aware that, according the Declaration of Juan Garcia, Technical Services Manager for the Colowyo mine, the mine employs nearly 250 people at full production. He represents that invalidation of the 2007 mine plan revision would likely cause layoffs if the operations were halted for any significant period, as well as ‘serious economic losses’ to Colowyo. It might also pose a hardship to the power plant which depends on Colowyo as a principal source of coal. This is not to say that the Court would not order vacatur despite the individual hardships that would follow in an appropriate case. However, given the fact that mining in this area has occurred since the mid-1970’s; that the environmental impacts have been studied over the years; that the state agency considered the environmental impacts from these mining plan revisions; and that government counsel noted during the hearing that OSM has changed its notice practices and procedures, I find that the benefits of immediate vacatur do not outweigh the potential harms.

“Instead, the Court will defer entering a vacatur order for a period of 120 days from the date of this order. During that period the Court expects OSM to take a hard look at the direct and indirect environmental effects of the Colowyo mining plan revision, and to provide public notice and an opportunity for public involvement before reaching its decisions. If this process has not been completed within the 120-day window, then an order of vacatur will be immediately effective absent further court order based upon very good cause shown.”

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.