Environmental groups are seeking to revive a climate change lawsuit regarding the federal coal leasing program, which allows companies to lease federal lands to mine coal. The coal leasing program manages leases on approximately 570 million acres of federal land, and produces approximately 40% of domestically sourced coal. Over 30% of energy generated in the United States comes from coal.
In 2014, the Western Organization of Resource Councils and Friends of the Earth (collectively, “Plaintiffs”) filed a National Environmental Policy Act (“NEPA”) lawsuit against the Department of the Interior (“DOI”) and the Bureau of Land Management (“BLM”) seeking to compel a new environmental review of the coal leasing program. Plaintiffs argued that the DOI and BLM violated NEPA by failing to adequately consider the climate change effects of the coal leasing program. The BLM prepared a programmatic Environmental Impact Statement (“EIS”), pursuant to NEPA, in 1979, before implementing the coal leasing program. It supplemented that review in 1985. NEPA requires a supplemental EIS, among other reasons, when “there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.”1 Plaintiffs seek to compel DOI and BLM to supplement the 1985 analysis because the EIS has never been updated to assess the program’s impact on climate change.
In August 2015, the district court dismissed the complaint because “supplementation is necessary only if there remains major federal action to occur,”and it found that there is no further “major federal action” to occur with regards to the coal leasing program. The court found that while the original implementation of the coal leasing program qualified as a major federal action, the issuance of leases pursuant to that program does not qualify as a major federal action. The court relied heavily on a Supreme Court case, Norton, where the plaintiffs complained about an increase in RV use on federal lands that were to be managed to sustain the area for potential wilderness preservation. The Norton plaintiffs claimed that the increase in RV use was sufficient grounds to require BLM to supplement its existing EIS.2 The Court disagreed, finding that there was no “ongoing federal action,” since BLM had already approved RV use on the land, and the only ongoing role BLM played was “informal[ly] monitoring [the area] for RV use.”3 In contrast, the Plaintiffs argued, the coal leasing program requires companies to seek a lease with the government before mining coal on federal land. There is a fairly lengthy application process for new coal leases, which includes reviews of geologic information, cost recovery, environmental assessments, consultations with other agencies, and public notice. In applying Norton to the case at hand, the district court equated the informal monitoring of activities which the government has already approved with a program in which companies must seek governmental approval before acting.
Plaintiffs appealed to the D.C. Circuit. That court held the case in abeyance, based on a joint unopposed motion, because on January 15, 2016, then Secretary of the Interior Sally Jewell ordered a moratorium on new coal leases. This order directed BLM to prepare a new environmental review of the coal leasing program which considered the program’s climate change-related impacts. This, in effect, rendered Plaintiffs’ claims moot. But Secretary of the Interior Ryan Zinke revoked Secretary Jewell’s order on March 29, 2017, ending the moratorium on new leases and abandoning the environmental review of the program. This prompted Plaintiffs to seek to revive the lawsuit. Plaintiffs filed a motion with the D.C. Circuit on May 26, 2017 to lift the abeyance.
Looking Forward: Changes to the NEPA Climate Change Analysis
Recent events, such as the U.S. exit from the Paris Agreement, have made clear that the Trump Administration seeks to make major changes to climate change policy. The Trump Administration also recently revoked the Obama Administration’s CEQ guidance document regarding analysis of climate change under NEPA.
What remains to be seen is whether or how the revocation of the guidance document — which was not binding on federal agencies or courts in the first instance — will change the scope of the required climate change analysis under NEPA. Notably, this issue will not come up unless the court first overturns the district court decision and concludes supplementation is necessary. But prior to the Obama Administration’s issuance of the NEPA climate change guidance, courts were already grappling with the scope of required climate change analyses under NEPA. Plaintiffs’ efforts to revive their coal leasing suit signals that such litigation is likely to continue in the future, resulting in continuing uncertainty regarding what courts will find to be an acceptable analysis of climate change impacts under NEPA.