The Trump administration today had a rough time in court fighting off environmentalists’ claims that the Interior Department must take a comprehensive look at the climate impacts of federal coal leasing.
Judges for the U.S. Court of Appeals for the District of Columbia Circuit grilled government lawyers on whether the National Environmental Policy Act requires Interior to revisit a decades-old analysis that underpins its coal leasing program.
"Your notion of finality, with respect, makes no sense," Senior Judge Harry Edwards said of the government’s primary defense in the litigation, adding that Interior should throw that argument "in the wastebasket."
At issue is whether Interior is required to supplement its 1979 environmental review for the Bureau of Land Management’s coal leasing program in light of market changes and increased understanding of climate change. The agency last updated the analysis in the 1980s.
The Western Organization of Resource Councils and Friends of the Earth sued the agency in 2014, lost the case and appealed to the D.C. Circuit. The appeal was placed on hold while the Obama administration froze new coal leasing and agreed to conduct a programmatic environmental impact statement (PEIS). Trump administration officials quickly reversed course last year, and the litigation restarted.
A win for the environmental groups could force the administration to take a broad look at impacts from coal leasing (Energywire, March 23).
In oral arguments this morning, Edwards, a Carter appointee, quickly rejected the government’s threshold argument that an ongoing operation of the coal leasing program isn’t subject to a NEPA challenge because it’s not a final agency action.
He and Judge Sri Srinivasan, an Obama appointee, both raised concerns that the government seemed resistant to acknowledging certain NEPA obligations at different stages in the leasing process.
In today’s case, Srinivasan said, Interior is arguing that the environmentalists have no climate claim because there is no final action to challenge, as required by NEPA and the Administrative Procedure Act. But, he continued, in cases dealing with site-specific project approvals, which are final actions, Interior has argued that it need not delve into program-level climate impacts because it’s just approving one project.
"You have to take the bitter with the sweet," he said, pushing Justice Department attorney Michael Gray to explain where that obligation might lie.
Gray maintained that environmental groups like WORC and Friends of the Earth could push for changes to the coal program’s NEPA analysis by filing a rulemaking petition or by challenging it in one of the site-specific cases.
Srinivasan said the case seemed to boil down to whether Interior’s "action" is the 1979 environmental review or the ongoing operation of the leasing program.
Goldstein & Russell PC attorney Eric Citron, representing the environmental groups, urged the court to recognize the latter interpretation. The ongoing operation of this program, he said, requires fresh NEPA review. He noted that the Council on Environmental Quality regulations specifically include "continuing" programs.
Judge Karen Henderson, a George H.W. Bush appointee, is also assigned to the case, but she did not attend today’s arguments.
In separate litigation, four states and a coalition of environmental groups are challenging Interior Secretary Ryan Zinke’s reversal of the Obama administration’s leasing moratorium and PEIS effort.
