Earlier this month, Chief Judge Brian Morris made clear that NEPA remains a powerful weapon against the leasing of public lands for fossil fuel extraction. It’s déjà vu all over again for the projects at issue. In 2018, Judge Morris ruled that two resource management plans (RMPs) prepared by the Bureau of Land Management concerning potential expansions of coal mines in Wyoming and Montana violated NEPA for a variety of reasons, including the failure: (1) to consider alternatives the would involve reducing the amount of available coal and (2) to adequately assess environmental impacts resulting from the downstream combustion of the extracted coal.
After BLM revised the RMPs in 2019, plaintiffs sued again. Once more, Judge Morris found that the RMPs violated MEPA, again for the same two reasons.
With respect to consideration of alternatives, Judge Morris found that BLM’s refusal to consider alternatives that preclude the expansion of existing mines violated NEPA. BLM and Wyoming both argued that the so-called “multiple use” approach of the Federal Land Policy and Management Act precludes BLM from considering a no-leasing alternative. Judge Morris disagreed.
Put simply, NEPA requires BLM to bookend its analysis by considering a no-future-leasing alternative and at least one alternative that further reduced leasing by reducing the potential for expansion. FLPMA’s “multiple use” directive requires BLM to manage public lands and resources in a manner that “takes into account the long-term needs of future generations for renewable and nonrenewable resources [. . .] without permanent impairment of the productivity of the land.” Coal mining represents a potentially allowable use of public lands, but BLM is not required to lease public lands. The multiple use mandate does not bar BLM from considering a no leasing alternative for public lands.
In short, the need to balance different uses does not allow BLM to avoid assessing whether that balance may require an alternative that limits future fossil fuel extraction.
Judge Morris also faulted BLM for failing to consider the downstream impacts of coal combustion, including impacts not related to GHG emissions:
NEPA requires agencies to analyze “any adverse environmental impacts which cannot be avoided should the proposal be implemented.” These impacts include “direct” and “indirect” effects. Indirect effects are “caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” Without a full analysis of non-GHG downstream emissions, the EIS fails to “foster informed decision-making” required by NEPA.
In all of the recent discussions of Senator Manchin’s efforts to facilitate fossil fuel projects, it seems worth noting that, while procedural changes may help nibble around the edges of NEPA, absent meaningful substantive revisions to NEPA requirements, citizen suits will remain a powerful weapon against further development of fossil fuel resources on public lands.