PUBLIC LANDS

Judge: Trump can't OK mining without environmental reviews

The Trump administration must complete an environmental analysis to support its decision to lift an Obama-era moratorium on coal leasing on public lands, a federal judge ruled Friday.

Judge Brian Morris for the U.S. District Court for the District of Montana stopped short of requiring the broad programmatic environmental impact statement that Obama Interior Secretary Sally Jewell had begun, but he ordered Trump officials to initiate some level of National Environmental Policy Act review.

The decision is a major blow — the latest of many — to the Trump administration's efforts to expand fossil fuel production.

Shortly after taking his post, former Trump Interior chief Ryan Zinke halted the previous administration's review of the coal program and called for expedited coal lease applications and modifications (Greenwire, March 29, 2017).

"The legal consequences that flow from the Zinke Order are evident," Morris wrote in a late Friday ruling.

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"With the Zinke Order's implementation, all BLM land became subject to lease applications with terms of twenty years," Morris found, referring to the Bureau of Land Management. "The Zinke Order directed new lease applications to be 'expedit[ed].' The PEIS process immediately stopped without full review of the concerns raised in the Jewell Order."

During oral argument in December, Morris raised concerns about requiring fresh NEPA analyses every time a new administration announces a policy change (Energywire, Dec. 17, 2018).

He did not dictate the form that the Trump administration's environmental review must take and reserved further judgment until the government initiates the process.

"Federal Defendants may comply with their NEPA obligations in a manner of ways," Morris wrote.

They could choose to prepare an environmental assessment or a more rigorous EIS, he said.

"If Federal Defendants determine that an EIS would not be necessary, however, Federal Defendants must supply a 'convincing statement of reasons' to explain why the Zinke Order's impacts would be insignificant," Morris wrote.

Environmental challengers will be calling for the administration to reinstate the Obama-era coal ban.

"Because the court found that the decision to lift the moratorium on federal coal leasing was unlawful, we will be asking the court to reinstate the moratorium unless and until the government can justify a decision to continue leasing federal coal in light of the science regarding climate change and other devastating impacts," Jenny Harbine, Earthjustice's lead attorney in the case, told E&E News.

"I don't think there is a justification that the government could put forward to continue to lease federal coal," she said. "Using our public resources to poison waters and make air unhealthy to breathe has set us on a path for a climate catastrophe."

Earthjustice and the Center for Biological Diversity represented environmental groups like Citizens for Clean Energy and the Sierra Club in the challenge.

"We've got to make sure the coal moratorium is put back in place to give our kids a shot at a livable world," Michael Saul, senior attorney at the Center for Biological Diversity, said in a Friday statement.

The Northern Cheyenne Tribe also raised claims over the federal government's trust obligations.

"Before Zinke made the decision to resume coal leasing without any analysis of impacts of that program, the Tribe delivered a written request to the Secretary of the Interior for formal government-to-government consultation," the tribe said in a statement.

"Former Secretary Zinke gave no response."

Morris held off on addressing the tribe's claims until the Trump administration offered its NEPA review.

The National Mining Association and the states of Wyoming and Montana intervened to defend the Trump-era policy.

A spokesman for the coal trade association said the group is reviewing the decision and weighing the next steps.

In his ruling, Morris resolved another question he had raised during oral arguments: whether the lawsuit resembled a separate coal leasing challenge previously tossed out by the U.S. Court of Appeals for the District of Columbia Circuit.

Judges for the D.C. Circuit last year said they could not require Interior to refresh its 1979 PEIS absent a new agency action (Energywire, June 20, 2018).

"The D.C. Circuit did not address a challenge to the Zinke Order," Morris found. "The D.C. Circuit instead limited its analysis to determining whether the continued reliance on outdated information in the 1979 PEIS required the Interior Department to supplement the PEIS with new information."

The federal government could choose to appeal Friday's decision, which would send the case to the 9th U.S. Circuit Court of Appeals.

President Trump has criticized the appellate court, which spans nine West Coast states, for striking down many of his policies.

Morris' order is the latest in a string of NEPA-related legal defeats for the Trump administration's push to develop fossil fuels on public lands.

"The Trump administration's energy policies appear to be driven by fossil fuel industry's wish list, rather than facts and science," said Harbine of Earthjustice. "The reason courts time and again have rejected the administration's actions under NEPA is because at the most basic level, NEPA requires thorough consideration of facts and science."

Twitter: @pamelalauren Email: pking@eenews.net

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