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US Coal Leasing Moratorium Reaches the Ninth Circuit



By Alanna Mayham

February 8, 2024 - The National Mining Association led an appeal against a reinstated moratorium on the federal coal leasing program on Tuesday, underscoring the confusion and slow-moving pace at which presidential administrations implement environmental policies.

The appeals brought by the national trade organization and the state of Montana ask the Ninth Circuit to reverse a federal judge’s reinstatement of a 2016 moratorium on new coal leasing on public lands. That order — issued by the Obama administration’s Interior Department secretary Sally Jewell — instructed the U.S. Bureau of Land Management to prepare a new programmatic environmental impact statement to identify and evaluate potential reforms to the federal coal-leasing program.

The Jewell order arrived in response to concerns raised by the Government Accountability Office, the department’s Inspector General, members of Congress and the public that the program might not be in the public’s best interest and might not provide fair market value to the public for the coal sales.

By early 2017, the bureau completed its scoping process and determined that an updated review was warranted. The federal agency, consistent with its practice during reviews dating back to the 1970s, placed a moratorium on new coal leasing until the review was completed in early 2019.

But within weeks of the Trump administration’s appointment of former Interior Department secretary Ryan Zinke in March 2017, a new order was fashioned to overhaul Jewell’s “burdensome” environmental protections and restart the federal coal-leasing program.

This prompted Citizens for Clean Energy and seven other environmental groups to sue the federal government in Montana’s federal court, and they were soon joined by the attorneys general for the states of California, Washington, New Mexico and New York.

By 2019, U.S. Chief District Judge Brian Morris had consolidated the cases and ruled that Zinke’s order was a major federal action that triggered review under the National Environmental Policy Act. The bureau released its final environmental assessment in February 2020, concluding that Zinke’s lifting of the coal moratorium would not change the total levels of greenhouse gas emissions from coal leasing or alter water resources beyond those identified in its prior reviews for four coal leases.

The bureau’s findings prompted the plaintiffs to supplement their complaint with allegations that the final analysis violated several environmental laws and the federal government’s trust obligation to the Northern Cheyenne Tribe in southeast Montana.

Morris partially agreed with the plaintiffs in 2022, finding that the analysis violated the National Environmental Policy Act and that —pending a sufficient analysis — it would be necessary to reinstate Jewell’s moratorium without mandating the resumption of a programmatic environmental impact statement.

A year before, however, current Interior Secretary Deb Haaland revoked policies created to implement Zinke’s order. That outcome should have mooted the consolidated lawsuit, National Mining Association attorney James Auslander told the judges on Tuesday.

 “The Zinke order and its NEPA analysis present no case or controversy and are moot because current Interior Secretary Haaland vacated them long before the district court purported to do so a second time and plaintiffs have not challenged that Haaland order,” Auslander said.

U.S. Circuit Judge Daniel Bress, a Trump appointee, pointed out how Morris’ order states that the Zinke order still remains in partial effect because Haaland has not returned the status quo from the Jewell order. When Bress asked if this was true, Auslander argued that neither the Zinke nor Jewell order stopped or amended the federal coal leasing program in any way.

“What they were,” Auslander said, “were discretionary action about how quickly the Department of the Interior would receive federal coal leasing applications under its existing program.”

Auslander noted that more leases were issued under the Jewell order than Zinke’s and that Morris’ order “crystallizes the central fiction underlying plaintiffs’ entire complaints in the district courts’ merits and jurisdictional rulings.”

The reality, Auslander said, is that the federal court rewrote the Jewell order to convert its environmental review and moratorium from voluntary to mandatory while indefinitely preventing leasing until an acceptable review “passes muster.”

Montana Assistant Solicitor General Peter Torstensen presented similar arguments for intervening defendants Montana and Wyoming, contending that Zenke’s order was not a major federal action and that the plaintiffs’ real goal was to create a new federal coal program despite their compliance claims.

Earthjustice attorney Jenny Harbine pushed back on these points for the environmental groups, stating that the Jewell order prevented most coal leasing and, after evaluating that order, Zinke’s Interior decided that it impeded coal production and threatened some mine closures.

Harbine also dismissed the claim that Morris’ order acted as an injunction, as it requires the Interior to conduct an environmental review before lifting the moratorium, and, as such, the Interior has already commenced that process to decide whether the pause is necessary.

“Until such a review occurs, the moratorium is essential to minimize further unexamined environmental harm for coal leasing and we ask this court to affirm,” Harbine said.

Arguing beside Harbine was California Deputy Solicitor General Sam Harbourt on behalf of California. Between all arguments, U.S. Senior Circuit Judge Jay Bybee — a Bush appointee — remained skeptical of either side and, at a few points, questioned whether the orders from Haaland and Jewell should have been subject to review, as well.

U.S. Circuit Judge Ronald Gould similarly questioned whether the panel could vacate Morris’ order without deciding on the environmental issues at hand. To this, Auslander told the Clinton appointee that the panel could vacate the order through mootness or a lack of final agency action.

“If the court does get to NEPA, we find that the interior did satisfy NEPA if it was triggered,” Auslander said.

The judges did not indicate how they would rule.