The Office of Surface Mining Loses Another NEPA Case — Do I Detect a Trend?

Last week, a federal judge once more rejected the Environmental Assessment for the expansion of the Spring Creek Mine in Montana.  The case does not really break any new ground, but it does add to the growing number of cases in which courts have rejected federal action approving a variety of large facilities related to energy production in one way or another.  The crux of this case was the failure of the EA to consider downstream, indirect, impacts of the proposed project.  Among the indirect impacts that the EA failed to consider were the following:

  • Coal transportation
  • Non-greenhouse gas emissions
  • Greenhouse gas emissions

Not surprisingly, the discussion of the GHG issue may be the most significant.  The Court acknowledged that OSM included an analysis of GHG emissions that, on its own, may have satisfied NEPA.  According to the Court, OSM went off the rails went it performed an assessment of the benefits of the project without considering the costs imposed by the combustion of additional coal in electricity generation.

If an agency elects to quantify the benefits of a proposed action, it must also quantify the costs. This is because it is improper for an agency to place its “thumb on the scale by inflating the benefits of the action while minimizing its impacts.”

It’s worth noting that, even though OSM has twice failed to deliver an EA that complies with NEPA, the Court once again chose not to vacate the mining plan approval or enjoin mining operations.  The plaintiffs have to be wondering what it will take to get substantive, and not merely procedural, relief.  Perhaps the Court is waiting for three strikes.

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