Last week, Judge Donald Malloy vacated the Environmental Assessment for the Bull Mountains Mine No. 1 in central Montana. Judge Malloy had already vacated the EA once; when the 9th Circuit affirmed Judge Malloy’s decision that the EA violated NEPA, it remanded the case for new findings as to whether vacatur would be appropriate.
The default rule is that when agency action has been struck down, vacatur follows. However, the court may choose not to vacate, particularly if the agency’s errors seem curable and if the consequences of vacatur would be substantial.
There are two important issues in the decision. The first is that, while the government opposed vacatur, it had already decided that the proposed project now warrants preparation of an environmental impact statement. To Judge Malloy, this decision by the Office of Surface Mining Reclamation and Enforcement was tantamount to an admission that the errors in the EA could not be cured. I get that, but it seems to lead to the wrong incentives, because it discourages agencies from undertaking corrective actions in these contexts.
The second aspect of the vacatur decision is the degree of disruption that vacatur would cause. The mine operator, Signal Peak, uses what is known as “longwall mining” at Bull Mountains No. 1. Signal Peak argued that vacatur would require that the longwall be disassembled and moved. Signal Peak also argued that moving the longwall would not just cost millions of dollars; it would also cause greenhouse gas emissions (moving the longwall requires substantial amounts of cement and steel).
Judge Malloy was not persuaded.
The disruptive consequences Signal Peak alleges are a product of its reliance on Mine Expansion approvals pursuant to invalid EAs.… Leaving the Mine Expansion approval in place, based on a deficient EA, risks more potentially disruptive impacts than keeping it in place. A properly conducted EIS does not necessarily mean federal mining in the Expansion Area will proceed.
NEPA remains a potent weapon.