Eliminating a Moratorium Affecting 1.86 Billion Tons of Coal Is Final Agency Action

In 2016, DOI Secretarial Order 3338 imposed a moratorium on new coal leases on federal land until BLM prepared a programmatic environmental impact statement intended to address, among other issues, the impact of coal leasing on climate change.

Times do change.  In 2018, DOI Secretarial Order 3348 eliminated the moratorium and the requirement to prepare a PEIS.  Litigation ensued.

Last week, Judge Brian Morris ruled against DOI.  The key findings were that the 2018 Order constituted a “major federal action” that triggered NEPA and that it constituted “final agency action” sufficient to permit review under the Administrative Procedure Act.  Neither of these conclusions should be surprising.  Neither was really a difficult call.  It is worth noting that the Court – rightly, I think – concluded that the ending of the moratorium and the decision not to prepare a PEIS both constituted final agency action under the APA.

The case is simply another example of the Trump Administration needing material for tweets demonstrating to its supporters that it is taking decisive action while ignoring the legal niceties required to attain substantive ends.  It’s why I don’t think that Trump even cares about the substantive ends; he cares only about the tweets.

The evidence for that is found in the actual judge’s order.  Lest anyone think that this was some wild-eyed leftist judge, Judge Morris did not in fact order BLM to prepare a PEIS.  Indeed, he left open the possibility that BLM could simply do an Environmental Assessment and a Finding of No Significant Impact, so long as it provides a “convincing statement of reasons” why no EIS should be required.  How hard would it have been to go through that process, rather than have Secretary Zinke issue Order 3348?

Time will tell whether this administration cares enough to supply a convincing statement of reasons.

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