On Friday, I posted about a decision invalidating BLM Resource Manage Plans for failure to comply with NEPA. My caption was “NEPA Is Still Going to Pose an Obstacle to Leasing Public Lands for Fossil Fuel Extraction.” Little did I know how prescient I was, because later on Friday, Judge Brian Morris – the same judge who invalidated the RMPs – went farther and reinstated the moratorium on leasing of public lands for coal mining that had been implemented by then-Secretary Jewell in 2016.
Once more, Judge Morris found DOI's NEPA analysis inadequate. When Secretary Zinke terminated the moratorium in 2017, litigation ensued and, in 2019, the Court ruled that the Zinke Order was subject to NEPA. In response, DOI completed an environmental assessment and issued a finding of no significant impact with respect to the Zinke Order.
However, the EA only examined four specific leases that were directly affected by the original moratorium. Furthermore, it assumed that the moratorium would have been terminated after three years, even absent the Zinke order. Judge Morris was not pleased.
The EA did not take the “hard look” NEPA requires with respect to restarting the federal coal leasing program. Under NEPA, the “no action” alternative describes baseline conditions. These conditions reflect the “status quo” against which the impacts of the proposed action and its alternatives are to be measured. BLM improperly cabined its NEPA analysis for ending the coal leasing moratorium to the leases granted during the estimated PEIS timeline. BLM's attempt to curtail the potential environmental impacts of lifting the moratorium, by failing to consider a potential alternative that provided a baseline of an indefinite moratorium, proves arbitrary and capricious. (Emphasis added.)
And in case there was any lingering doubt about whether the Zinke Order was in fact likely to have a significant impact on the environment, Judge Morris noted that:
BLM had pending lease applications encompassing at least 1.8 billion tons of federal coal that would be mined from 28 mines across nine states at the time of the Zinke Order. BLM's own analysis states that cumulative greenhouse gas emissions from the coal lease applications that were suspended under the Jewell Order would amount to more than one billion tons/year.
Time to chalk up DOI's handling of the Zinke Order as just one more example of an administration that cared more about getting its press release out on twitter than it cared about providing any kind of sound legal basis for the actions that it took.
To view Foley Hoag's Law and the Environment Blog please click here
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