Late last month, Judge Brian Morris granted summary judgment to plaintiffs on three claims alleging that the environmental impact analysis supported BLM’s Resource Management Plans for managing coal leases in the Powder River Basis were flawed. It’s a very thoughtful decision. Judge Morris rejected three of plaintiffs’ claims and did not provide the injunctive relief that they sought. Nonetheless, it’s an important setback for BLM and further evidence that courts are going to require more of BLM in assessing climate impacts associated with energy resource development.
The plaintiffs had to get over two significant hurdles just to get in the game. One was BLM’s argument that plaintiffs’ concerns could all be addressed in the context of individual leasing decisions; there was, BLM argued, essentially no harm flowing from approval of the RMPs. The Court rejected that argument – rightly, I think. The problem is that it essentially proves too much, making the entire planning process irrelevant. If the RMPs miss essential elements of the analysis, shouldn’t those flaws be addressed at the planning level, rather than in the context of each individual leasing decision?
Second, the land at issue is already potentially open to development. The BLM argued that it had no obligation to assess alternatives that would change the status quo. Judge Morris gave this argument short shrift, noting that:
Plaintiffs’ alleged injury stems from Federal Defendants’ decision to keep these lands open to potential development. This outcome represents the type of injury “contemplated by Congress” in drafting NEPA.
The three claims granted by Judge Morris were:
- Inadequate consideration of alternatives. The EISs only looked at alternatives that maintained the same acreage for leasing as is currently available. The Court concluded that “Climate change concerns presented a reasonable basis for BLM to conduct a new coal-screening and to consider adopting an RMP that foreclosed coal extraction in additional areas.”
- Consideration of Climate Change. The Court concluded that indirect and downstream impacts of coal extraction were sufficiently foreseeable to “permit a ‘productive analysis’ of” those impacts.
- Improper assessment of the global warming potential associated with methane releases.
The Court refused to vacate BLM’s Record of Decision. Instead, it ordered the parties to try to develop a joint response to the Order. Absent that, the parties will submit briefs on the appropriate remedy. In the meantime, the Court has issued an injunction requiring BLM to perform the analyses described in the Order in any individual leasing decisions that are made before the RMP environmental analysis are revised.
A fairly Solomonic decision, if I do say so.
In theory, planning at the individual RMP level could include, for example, an opportunity for an RMP to propose a feasibility demonstration of a non-combustion use of the coal coupled with carbon sequestration of the waste streams.. Also, that type of individual RMP could be compatible with setting criteria for progressive RMPs in an over-arching Plan.