COAL

Greens see judge's rejection of Colo. lease as turning point in climate fight

Environmentalists who have tried with little success to stop the Obama administration from leasing billions of tons of coal for mining are hailing a U.S. district court ruling in Colorado last week as a game changer.

At issue in Judge R. Brooke Jackson's decision that scrapped federal approval of coal-lease expansion was the impact of coal mining and burning on global warming.

"Last week's win was the first big victory," said Jeremy Nichols, the climate and energy chief for WildEarth Guardians.

Jackson in June said regulators had failed to pay enough attention to greenhouse gas emissions when they approved an Arch Coal Inc. mine expansion in a roadless area of the Gunnison National Forest.

He made a similar determination on the 2012 Colorado roadless rule, which allows temporary road construction and other mining-related activities in certain areas (E&ENews PM, June 27).

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Last week, Jackson decided the appropriate remedy was to scrap approval of the lease expansion along with the pro-mining provisions of the roadless rule (Greenwire, Sept. 12).

Sierra Club attorney Nathaniel Shoaff expressed confidence in an interview that the ruling would force the Bureau of Land Management and the Forest Service to pay more attention to climate concerns when reviewing coal lease decisions under the National Environmental Policy Act.

Said Earthjustice attorney Ted Zukoski, "Time will tell."

Beyond highlighting climate concerns, Jackson also boosted the environmentalists' efforts to promote an analysis of the social cost of carbon. Lawmakers, particularly pro-fossil-fuel Republicans, have been trying to block such a calculation.

Jackson was also unhappy with the administration's "general discussion of the effects of global climate change" when it reviewed Arch's proposed mine expansion.

And he said regulators had to at least explain why they were opting against using the social cost of carbon calculation. An administration staffer's expressing concern about controversy over the analysis, Jackson said, was not enough.

"It's the first decision that I'm aware of that invalidated a federal agency decision for the failure to consider the social cost of carbon," said Shoaff, speaking about coal leasing specifically.

On other issues, Jackson pointed to a 9th U.S. Circuit Court of Appeals ruling in 2008 in Center for Biological Diversity v. National Highway Traffic Safety Administration, which addressed truck fuel standards. In that ruling, judges said the cost of emissions could not be zero.

Environmentalists say the administration should be using the social cost of carbon calculation, which attempts to describe how carbon dioxide emissions affect society, for environmental reviews throughout the government and not just in rulemaking, where the focus has been.

"The administration should be embracing the use of the social cost of carbon calculation as they are in the rulemaking context," said Zukoski, calling it a "tool that allows the public to understand easily what the costs of climate change are."

Luke Popovich, spokesman for the National Mining Association, described Jackson's ruling as more narrowly tailored than it is portrayed by environmentalists. He said the judge faulted BLM for describing the benefits of coal leasing without outlining the cost.

Popovich also noted a recent decision by the White House Council on Environmental Quality against new regulations governing climate change in NEPA reviews.

Interior Department spokeswoman Jessica Kershar said BLM "is committed to the safe and responsible development of both traditional and renewable energy resources on public lands."

"The BLM also recognizes that coal is a key component of America's comprehensive energy portfolio and the nation's economy and works to ensure that the development of coal is done in an environmentally safe and responsible manner," she said.

'Perfect substitution'

There's another part of Jackson's ruling that could influence other coal-leasing decisions, Shoaff said.

In approving the Colorado roadless rule, the administration argued that coal mining would continue elsewhere even if regulators rejected the rule's pro-mining exemptions. The "perfect substitution" argument has become common in defending coal extraction decisions.

But Jackson said, "I cannot make sense of this argument." He cited a 2003 case, Mid States Coalition for Progress v. Surface Transportation Board, in which the 8th U.S. Circuit Court of Appeals rejected a similar argument associated with coal rail transport.

Jackson wrote, "The production of coal in the North Fork exemption will increase the supply of cheap, low-sulfur coal. At some point this additional supply will impact the demand for coal relative to other fuel sources, and coal that otherwise would have been left in the ground will be burned."

Now environmental groups are asking Wyoming U.S. District Court Judge Alan Johnson to consider Jackson's ruling in litigation concerning the so-called Wright Area coal leases. The Obama administration's 2010 Wright Area environmental impact statement paved the way for various coal lease decisions.

"Petitioners have argued here that BLM fundamentally misrepresented the climate impacts of its decision to approve approximately 2.3 billion tons of coal mining at the Wright Area Leases by incorrectly assuming that if it were to select the No Action alternative, the same amount of coal would be mined and burned from someplace else," groups wrote in a July supplemental brief to Johnson.

Coal industry attorneys responded with a brief of their own last month.

"The reasonableness of the agencies' conclusions will be determined based on the Wright Area FEIS, not on some different analysis for a different project in another state," they wrote to Johnson. "The decision therefore has no relevance here."

Beyond the Wright Area leases, Shoaff sees Jackson's "perfect substitution" opinion as potentially having broad repercussions.

"We'll see this decision as the courts and the agencies wrestle with this decision," he said, "I think you'll really see this piece of it becoming central."

Arch said the Jackson rulings in Colorado won't have an immediate effect on mining operations but said coal resources "could potentially be rendered unavailable by the court's decision and the serious delays that could very well accompany it."

Stuart Sanderson, head of the Colorado Mining Association, called the Colorado roadless rule's pro-mining exemptions "a carefully wrought compromise that was the result of broad public participation over a period of many years."

He added, "I expect that this will not be the final say and that the issue will be vigorously contested on appeal."

Twitter: @ManuelQ | Email: mquinones@eenews.net

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