350 Mont. v. Bernhardt

443 F.Supp.3d 1185

350 MONTANA, et al., Plaintiffs,

v. David BERNHARDT, et al., Defendants,andSignal Peak Energy, LLC, Defendant-Intervenor.

CV 19-12-M-DWM

United States District Court, D. Montana, Missoula Division.

Signed March 9, 2020

Shiloh Silvan Hernandez, Laura King, Melissa Anne Hornbein, Western Environmental Law Center, Helena, MT, for Plaintiffs.

Michelle-Ann C. Williams, Hao-Chin Hubert Yang, United States Department of Justice, Washington, DC, Mark Steger Smith, U.S. Attorney's Office, Billings, MT, for Defendants.

Hadassah M. Reimer, Pro Hac Vice, John C. Martin, Holland & Hart, Jackson, WY, Sarah C.S. Bordelon, Pro Hac Vice, Holland & Hart, Reno, NV, Victoria A. Marquis, Holland & Hart, Billings, MT, for Defendant-Intervenor.

OPINION and ORDER

Donald W. Molloy, United States District Judge

Plaintiffs are environmental organizations challenging, once again, the Office of Surface Mining Reclamation and Enforcement's ("Enforcement Office") approval of Signal Peak Energy, LLC's application to expand the Bull Mountains Mine. The expansion was first approved in 2015 but was enjoined for violating the National Environmental Policy Act ("NEPA"). Mont. Emit. Info. Ctr. v. U.S. Office of Surface Mining , 274 F. Supp. 3d 1074, 1105 (D. Mont. 2017). In 2018, the Enforcement Office approved the expansion a second time. This suit challenges the 2018 approval under NEPA and the Endangered Species Act ("ESA"). Pending before the Court are cross-motions for summary judgment. (Docs. 36, 41, 43.) A hearing was held on March 4, 2020. For the following reasons, summary judgment is proper for Plaintiffs on their claim that the Enforcement Office violated NEPA by failing to adequately consider the risk of coal train derailments. The Enforcement Office prevails on the remaining claims.

BACKGROUND

The Bull Mountains Mine is an underground coal mine in south-central Montana, approximately 30 miles north of Billings. AR16736. The history of the mine and the regulatory framework under which it operates are set forth in the previous case. Mont. Envtl. Info. Ctr. , 274 F. Supp. 3d at 1081–85. That case invalidated the 2015 Environmental Assessment ("EA") for failing to adequately assess the effects of increased coal train traffic and increased greenhouse gas emissions that would result from the expansion. Id. at 1090–99. The matter was remanded to the Enforcement Office and the expansion was enjoined. Id. at 1105.

The Enforcement Office published another EA in May 2018, AR16730–17006, and approved the expansion in August 2018, AR17023–26. Plaintiffs filed this suit in January 2019, requesting declaratory and injunctive relief. (Compl., Doc. 1.) Specifically, they allege the Enforcement Office violated NEPA by failing to prepare an Environmental Impact Statement ("EIS") (Count 1), failing to take a "hard look" at the effects of coal transportation and greenhouse gas emissions (Counts 2, 3), and failing to consider reasonable alternatives (Count 4), and violated the ESA by concluding the expansion would not affect grizzly bears or northern long-eared bats (Counts 5, 6). (Id. at ¶¶ 121–206.) Signal Peak intervened in February 2019. (Doc. 9.) The parties subsequently filed the present cross-motions for summary judgment. (Docs. 36, 41, 43.)

LEGAL STANDARD

NEPA and ESA claims are reviewed under the Administrative Procedure Act ("APA"), which authorizes courts to "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) ; San Luis & Delta-Mendota Water Auth. v. Jewell , 747 F.3d 581, 601 (9th Cir. 2014). An action is "arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

Summary judgment is proper "if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is particularly applicable to judicial review of final agency action, where the issue is "whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." City & Cty. of S.F. v. United States , 130 F.3d 873, 877 (9th Cir. 1997) (internal quotation marks omitted).

ANALYSIS

I. NEPA

NEPA does not "mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions." Neighbors of Cuddy Mtn. v. Alexander , 303 F.3d 1059, 1070 (9th Cir. 2002) (internal quotation marks omitted). It requires federal agencies to prepare an EIS for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). To assist in deciding whether an EIS is necessary, an agency may prepare an EA. 40 C.F.R. § 1501.4. While an EA is a "concise public document," it must describe the proposed action, discuss alternatives, and consider environmental impacts. Id. at § 1508.9. If an agency decides in an EA that the proposed action will not have any significant impact, it may issue a "Finding of No Significant Impact" instead of preparing an EIS, as the Enforcement Office did here with respect to the mine expansion. Id. at §§ 1508.9(a)(1), 1508.13.

Here, Plaintiffs argue the Enforcement Office violated NEPA by (1) failing to adequately consider the effects of increased rail traffic and increased greenhouse gas emissions that would result from the expansion in the EA and (2) issuing a Finding of Significant Impact rather than complete an EIS.

A. Effects of Coal Transportation and Greenhouse Gas Emissions

An EA must address the environmental effects of the proposed action, including indirect and cumulative effects. Id. at § 1508.9(b); Ctr. for Envtl. Law & Policy v. U.S. Bureau of Reclamation , 655 F.3d 1000, 1006 (9th Cir. 2011). A cumulative effect "is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions." 40 C.F.R. § 1508.7. Indirect effects are those "which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." Id. at § 1508.8(b). Agencies "need not consider potential effects that are highly speculative or indefinite."

Presidio Golf Club v. Nat'l Park Serv. , 155 F.3d 1153, 1163 (9th Cir. 1998) (internal quotation marks omitted).

1. Coal Transportation

Coal is transported from the mine via freight trains to the Westshore Terminal in Vancouver, British Columbia. AR16750–51. To get to the Westshore Terminal, coal trains first travel a 30-mile spur that connects the mine to the railroad at Broadview, Montana. AR16760. From Broadview, the trains travel to Laurel, Montana, where they join the main line. Id. In 2016, 2.1 trains per day traveled to or from the mine. AR16786. That number grew to 3.6 trains per day from 2017 to 2019 due to increased production. See id. With the expansion, the 3.6 trains per day would continue for an additional nine years. AR16789. Plaintiffs argue the 2018 EA failed to consider the effects of increased train transportation on grizzly bears, public health, and the risk of derailments.

a. Grizzly Bears

Plaintiffs argue the 2018 EA failed to take a hard look at the risk of train collisions with grizzly bears. The Enforcement Office responds that collisions between a train from the mine and a grizzly bear are too speculative to require NEPA analysis. On this record, the Enforcement Office has the better argument.

The record indicates that train collisions resulted in 35 grizzly bear deaths along the Flathead River between 1984 and 2004, AR16591, and three grizzly bear deaths in the Cabinet-Yaak region between 1982 and 2012, AR12841. However, the only record material on the connection between rail traffic and wildlife deaths is an EIS conducted by Washington state analyzing a proposed coal export terminal along the Columbia River. AR04481. The Washington EIS references two studies on the factors related to wildlife collisions, including train speed, rail alignment, train volume, and the abundance of wildlife along rail corridors. Id. In the end, though, the Washington EIS only concludes that an "increase in train traffic ... would increase the risk of wildlife strikes by trains." Id. NEPA only requires agencies to analyze effects that are reasonably foreseeable. 40 C.F.R. § 1508.7. There is nothing in the record about the risk of train collisions beyond the common-sense proposition that more trains mean more collisions. NEPA does not require agencies "to do the impractical, if not enough information is available to permit meaningful consideration." Envtl. Prot. Info. Ctr. v. U.S. Forest Serv. , 451 F.3d 1005, 1014 (9th Cir. 2006) (internal quotation marks omitted). On this record, train collisions with wildlife are too attenuated from the mine expansion to warrant analysis under NEPA.

b. Public Health

Plaintiffs claim the 2018 EA failed to take a hard look at the effects of emissions from increased rail traffic on public health. Specifically, Plaintiffs challenge (1) the conclusion that rail emissions are transitory, (2) the failure to address whether rail emissions would increase cancer risks, (3) the treatment of current air quality in communities along the rail line, and (4) the purported failure to address cumulative impacts of rail emissions.

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