Mont. Envtl. Info. Ctr. v. U.S. Office of Surface Mining

274 F.Supp.3d 1074

MONTANA ENVIRONMENTAL INFORMATION CENTER, Plaintiff,

v. U.S. OFFICE OF SURFACE MINING, an agency within the U.S. Department of the Interior, et al., Defendants,andSignal Peak Energy, LLC, Defendant–Intervenor.

CV 15–106–M–DWM

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

Filed August 14, 2017

Laura King, WESTERN ENVIRONMENTAL LAW CENTER, 103 Reeder's Alley, Helena, MT 59601, 406–324–8011, Fax: 406–443–6305, Email: king@westernlaw.org, Shiloh Silvan Hernandez, WESTERN ENVIRONMENTAL LAW CENTER, 103 Reeder's Alley, Helena, MT 59601, 406–204–4861, Email: hernandez@westernlaw.org, Attorneys for Plaintiffs.

Marissa Ann Piropato, Department of Justice, Enviornmental & Natural Resources Division, Natural Resources Section, Ben Franklin Station, P.O. Box 7611, Washington, DC 20044, 202–305–0470, Fax: 202–305–0506, Email: marissa.piropato@usdoj.gov, Michelle–Ann C. Williams, UNITED STATES DEPARTMENT OF JUSTICE, 601 D. St. NW, Rm. 3708, Washington, DC 20004, 202–305–0420, Fax: 202–305–0506, Email: michelle-ann.williams@usdoj.gov, Ruth Ann Storey, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, PO Box 663, Washington, DC 20044–0663, 202–305–0493, Fax: 202–305–0493, Email: ruth.ann.storey@usdoj.gov, Attorneys for Defendants.

Chad E. Adams, BROWNING KALECZYC BERRY & HOVEN, 800 N. Last Chance Gulch, Suite 101, PO Box 1697, Helena, MT 59624–1697, 406–443–6820, Fax: 406–443–6883, Email: chad@bkbh.com, Daniel C. Garfinkel, BUCHANAN INGERSOLL & ROONEY PC, One Oxford Centre, 301 Grant Street, 20th Floor, Pittsburgh, PA 15219, 412–562–8800, Fax: 412–562–1041, Email: daniel.garfinkel@bipc.com, Robert L. Burns, BUCHANAN INGERSOLL & ROONEY PC, One Oxford Centre, 301 Grant Street, 20th Floor, Pittsburgh, PA 15219, 412–562–8800, Fax: 412–562–1041, Email: robert.burns@bipc.com, Samuel W. Braver, BUCHANAN INGERSOLL & ROONEY PC, One Oxford Centre, 301 Grant Street, 20th Floor, Pittsburgh, PA 15219, 412–562–8939, Fax: 412–562–1041, Email: samuel.braver@bipc.com, Steven T. Wade, BROWNING KALECZYC BERRY & HOVEN, 801 West Main, Suite 2A, Bozeman, MT 59715, 406–443–6820, Fax: 406–443–6883, Email: stevew@bkbh.com, William John Tietz, III, BROWNING KALECZYC BERRY & HOVEN, 800 N. Last Chance Gulch, Suite 101, PO Box 1697, Helena, MT 59624–1697, 406–443–6820, Fax: 443–6883, Email: john@bkbh.com, Attorneys for Intervenor.

ORDER

Donald W. Molloy, United States District Judge

INTRODUCTION

Plaintiffs Montana Elders for a Livable Tomorrow, Montana Environmental Law Center, and Montana Chapter of the Sierra Club challenge the United States Office of Surface Mining and Enforcement's ("Enforcement Office") decision to approve Signal Peak Energy's ("Signal Peak") application for a federal mining plan modification. (Doc. 1.) After conducting an Environmental Assessment ("EA"), the Enforcement Office concluded that the modification would not have a significant impact on the human environment. AR 021642. The plaintiffs think the EA was deficient in a number of ways, and that the Enforcement Office's decision not to prepare an Environmental Impact Statement ("EIS") violated the National Environmental Policy Act ("NEPA"). (Doc. 1.) Signal Peak and the Enforcement Office (collectively "Defendants") respond that the EA and Finding of No Significant Impact ("FONSI") were sufficient. (Docs. 6, 13.) The parties have filed cross-motions for summary judgment and the matter is ripe for ruling.

For the reasons explained below, the Enforcement Office did not violate NEPA by ignoring its internal guidance (Count I), took a hard look at the potential impacts of mine dewatering on springs and wetlands (Count V), and relied on an adequate "purpose and need" statement (Count VI). Consequently, Defendants prevail as to those counts. The plaintiffs have not argued the Enforcement Office failed to consider reasonable alternatives (Count VII), which means Defendants prevail as to that count as well. But those rulings do not put the case to rest. The Enforcement Office failed to take a hard look at the indirect and cumulative effects of coal transportation and coal combustion (Count III), it failed to take a hard look at foreseeable greenhouse gas emissions (Count IV), and it made a decision without sufficient consideration for the need to produce an EIS despite significant uncertainty about the critical issues (Count II). The plaintiffs then prevail as to those counts.

STATUTORY FRAMEWORK

Pursuant to the Mineral Leasing Act ("Leasing Act"), the Secretary of the Interior ("Secretary") may dispose of federal coal deposits to U.S. citizens, associations, or corporations. 30 U.S.C. § 181. The Leasing Act further provides that the Secretary "shall, in his discretion, upon the request of any qualified applicant or on his own motion ... offer such lands for leasing and shall award leases thereon by competitive bidding." 30 U.S.C. § 201(a)(1). It also requires the Secretary approve of a mining operation and reclamation plan before the environment is disturbed. 30 U.S.C. § 207(c).

The Surface Mining Control and Reclamation Act (the "Surface Act"), 30 U.S.C. §§ 1201 et seq. , is a "comprehensive statute designed to ‘establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.’ " Hodel v. Va. Surface Mining & Reclamation Ass'n , 452 U.S. 264, 268, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (quoting 30 U.S.C. § 1202(a) ). The Surface Act created the Enforcement Office, 30 U.S.C. § 1211(a), through which the Secretary is charged with, inter alia , "administer[ing] the programs for controlling surface coal mining operations which are required by [the Surface Act]." 30 U.S.C. § 1211(c)(1). "Surface coal mining operations" are in turn defined to include "surface operations and surface impacts incident to an underground coal mine."

30 U.S.C. § 1291(28). The Surface Act uses cooperative federalism to regulate coal mining by setting "federal minimum standards governing surface coal mining which a State may either implement itself or else yield to a federally administered regulatory program." Hodel , 452 U.S. at 289, 101 S.Ct. 2352. To exercise primary jurisdiction, a state must submit a proposed regulatory program to the Secretary; if the Secretary approves the program, state law and regulations govern the regulation of surface coal mining in the state and state officials administer the program. 30 U.S.C. § 1253 ; In re Permanent Surface Mining Regulation Litig. , 653 F.2d 514, 518 (D.C. Cir. 1981). Montana successfully applied for primary jurisdiction. The State exercises its regulatory authority through the Montana Department of Environmental Quality ("Montana DEQ"). 30 C.F.R. § 926.10.

The process of mining federally-leased coal in Montana requires that mine operators obtain (1) a surface mining permit from the Montana DEQ, 30 U.S.C. §§ 1253, 1273(c), and (2) the Secretary's approval of a mining plan of operations under the Leasing Act, 30 U.S.C. § 207(c) ; 30 C.F.R. § 746.11(a). The Secretary's decision to approve or deny a mining plan or mining plan modification is based on a recommendation from the Enforcement Office, the operation of which is in turn governed by the Surface Act. 30 U.S.C. § 1211 ; 30 C.F.R. § 746.13. The legal process is not simplistic and it is designed not only to make mining opportunities available, but also to ensure the environment is protected by considerations of relevant issues and materials before a permit is issued or modified.

BACKGROUND

This case concerns the Enforcement Office's decision to approve a Federal Mining Plan Modification (the "Mining Plan") to the Bull Mountains Mine No. 1 underground coal mine (the "Mine"). The Mine is located in the Bull Mountains of central Montana, approximately 30 miles north of Billings and 20 miles southeast of Roundup. AR 004107. As part of the Pine Breaks uplands, the Bull Mountains are distinguished from the neighboring plains by a relatively abundant water supply and a more diverse ecology. AR 009440. The topography of the Bull Mountains "varies from uplands, rock outcrops, and ravines forested with ponderosa pine and Rocky Mountain juniper at higher elevations, to adjoining sagebrush and mixed prairie grassland communities on benches, slopes, and drainages where soils are deeper." AR 015127. The mountains contain a diverse ecology, ranching operations, and water resources, such as spring fed wetlands, ponds, and intermittent stream reaches. AR 015121–22, 015128–29, 015132, 015151.

The history of coal mining in the Bull Mountains reaches back to 1908. AR 014663. The Mine itself first began sporadic operation in the early 1990s, AR 000006, 001135, while current operations under Intervenor–Defendant Signal Peak Energy commenced in 2008, AR 021407. As of 2015, the Mine employed 312 people. AR 021303. In 2014, Signal Peak estimated coal production at approximately 10.5 million tons. Id. Current surface operation includes mine portals, run of the mine and clean coal stockpiles, coal processing facilities, a coal loadout facility and railroad loop, waste disposal area, mine shop and offices, associated water control facilities, and other associated facilities, encompassing approximately 515 acres of existing disturbance. AR 021304.

Mining takes place via a combination of continuous and longwall mining techniques. AR 021407. Continuous mining methods are used for development of production mains and longwall panels, while longwall equipment is used to extract coal in the panels between the development entries. Id. Continuous mining involves driving a rotating cutting drum into the coal bed to cut coal from the coal face, which is then transported out of the mine via a system of conveyor belts and shuttle cars. AR 021408–09. Longwall mining uses a large shearer to shear coal from the coal face of the panel. AR 021411. Each of the longwall panels consists of a large block of coal, approximately 1,250 feet wide by...