States, Environmentalists Join Forces in Coal Leasing Case Against Feds

 

 

By Karl Puckett

December 14, 2018 - Oral arguments were heard Thursday in Great Falls, Montana over Interior Secretary Ryan Zinke's decision to reinstate coal leasing on federal lands.

The house was divided with 15 attorneys, six states, multiple environmental groups and a Native American tribe taking opposite sides.

The case is before U.S. District Judge Brian Morris.

At issue is the legality of a March 28, 2017, decision by Zinke to lift a moratorium on leasing federal lands for coal development, which was instituted by Sally Jewell, Interior Secretary in the Obama administration.

"This decision came as the world faced a growing climate crisis," said Jenny Harbine, an EarthJustice attorney, of the Trump administration's decision to overturn the Obama administration's pause on coal leasing.

Harbine represents the Citizens for Clean Energy (CCE), a Great Falls-based group, and Helena-based Montana Environmental Information Center (MEIC).

They sued the Interior Department to reinstate the moratorium.

Harbine argued Zinke's decision was a "major federal action" that should have triggered an environmental review looking at its consequences, as required by the National Environmental Policy Act.

"That certainly sounds like the type of action designed to have impacts on the ground," said Harbine, noting that Zinke, at the time, called the lifting of the moratorium a historic action to revitalize the coal industry.

John Most, a Justice Department attorney for Interior Department, disputed Harbine's characterization of Zinke's action.

"The current administration acted only to restore the status quo," Most said.

The government, he added, is not disputing climate change.

"But this case is not about climate change," Most said. "It's about a narrow legal question."

That question, he said, is whether Zinke's decision simply to end the moratorium and reinstate the same coal leasing program requires a full-blown environmental impact statement to study the environmental affects. He said it doesn't.

Other plaintiffs suing the Interior Department are the Northern Cheyenne Tribe, the Center for Biological Diversity,  Defenders of Wildlife, Sierra Club and WildEarth Guardians and the states of California, New Mexico, New York and Washington.

In lifting the moratorium, the plaintiffs argue the federal government failed to properly consider the environment impacts and also isn't getting market value for the coal leases.

The Northern Cheyenne Tribe, based in Lame Deer, said the administration's decision was made without consulting the tribe's leaders and without analyzing potential cultural, environmental, economic and socio-economic impacts. The reservation is located in the coal-rich Powder River Basin.

The lawsuit also challenges the Interior Department's decision under Jewell and Obama to end an environmental review of the coal leasing program.

That review was launched after concerns were raised by the Government Accountability Office and others about environmental and public health impacts of federal coal production and whether taxpayers were earning a fair return for the use of the public resources.

The National Mining Association and the states of Wyoming and Montana have intervened on the side of the Interior Department.

In their defense, they say Zinke's order to resume the coal leasing program did not do anything to trigger a National Environmental Policy Act-environmental impact statement or judicial review.

Most, the Justice Department attorney, said the same protections that were in place prior to the moratorium are in place now. The environmental impacts of each lease are reviewed on a case-by-case basis. And they can be challenged.

"I just don't think it's a fair argument that they are high and dry," said Most, referring to the plaintiffs.

District Judge Morris questioned the attorneys, at one point asking them to draw distinctions between a major agency action requiring environmental review and a change in policy. 

"The issue is you can't just do that with a stroke of a pen," George Torgun, supervising deputy attorney general with the state of California, said of Zinke's order ending the coal leasing moratorium.

California and the other three states have argued in court papers that the states have been leaders in working to reduce greenhouse gas emissions to slow the pace of climate change.

That's why they have an interest in ensuring the federal coal leasing program does not undermine those efforts, they say.

Morris asked California's Torgun about that state's standing in this case. The states, Torgun said, suffered "procedural harm," but air quality also stands to be harmed as a result of exporting and burning coal.

"It's clear the federal program has significant environmental consequences," Torgun said.

It's clear that the plaintiffs want the federal government to stop leasing coal on federal land, said James Auslander, an attorney for the National Mining Association.

But a difference in policy is not enough to stop the coal leasing program, he said.

"The Zinke order simply removed the pause in processing applications," added Michael  Robinson of the Wyoming attorney general's office representing the states of Wyoming and Montana.

In announcing he was lifting the coal leasing moratorium, Zinke said the move signaled "the war on coal is over and punitive regulation that was directed specifically toward coal."

About 40 percent of the nation's coal comes from federal land.

The BLM is responsible for leasing about 570 million acres where coal mineral estate is owned by the federal government.

About 85 percent of federal coal production is in the Powder River Basin of Montana and Wyoming, mostly on federal lands. 

The lawsuit says the last environment review of the federal coal program was completed in 1979 at a time when the threat of climate change had not yet been fully realized.