A Billings judge has given the U.S. Department of the Interior a year-and-a-half to conduct a more extensive analysis of a proposal to pull 70 million tons of coal from an expansion of the Rosebud mine.
The ruling comes as coal faces an uncertain future, both nationally and statewide, with power companies finding cheaper and cleaner alternatives to coal combustion, despite the fact that there are still considerable quantities of unrecovered coal available for mining. Montana has the country’s largest coal reserves, but the state’s largest coal plant faces an uncertain future with Washington-based and Oregon-based utility companies planning an exit from it as soon as 2025.
At issue in the litigation before the federal court in Billings is a proposal by Rosebud Mining, LLC, to strip mine 2,159 acres of coal across a 6,747-acre permit area to fuel the coal-fired power plant in Colstrip. The company had forwarded its proposal to the department’s Office of Surface Mining Reclamation and Enforcement, but U.S. District Court Judge Susan Watters found that the agency’s review of the project inadequate in her Sept. 30 order largely affirming the ruling of the magistrate judge working under her.
In 2019, Montana Environmental Information Center, Sierra Club and WildEarth Guardians sued federal regulators over their approval of the Rosebud Mine expansion. The environmental groups argued that the government failed to account for the project’s greenhouse gas and water impacts, and asserted that the agency should have considered a broader range of alternatives in its environmental impact statement for the project, which spans more than 10 square miles.
In February, Magistrate Yellowstone County District Court Judge Timothy Cavan agreed with the environmental groups on the broad outlines of the first claim but disagreed with them on the second. In a ruling, he found that the department had completed an adequate analysis of alternatives pertaining to the mine expansion.
Westmoreland Rosebud Mining appealed Cavan’s ruling, asserting that it had completed the level of analysis required under the National Environmental Policy Act. They also argued that the plaintiff groups lacked standing to bring the lawsuit.
Watters found that the material provided by the agency regarding surface water impacts contained “conclusory statements” that were based upon “vague and uncertain analysis.” She ordered the department to include more cumulative effects analysis in accordance with NEPA, including coal combustion’s effect on the Yellowstone River. Between 25,000 and 50,000 acre-feet of water are diverted from the Yellowstone annually as part of Colstrip’s operations.
In an Oct. 3 release about the ruling, the environmental group plaintiffs cheered the order. They asserted that burning 70 million tons of coal would amount to a disastrous climate change escalation, that there are cleaner sources of energy available, and that water impacts associated with coal mining and burning threaten the “lifeblood of Montana.”
Federal regulators “got caught doing the bidding of the mining industry instead of doing the work of the people,” MEIC Deputy Director Derf Johnson said in the release.
Another point of contention in the lawsuit is whether the analysis should have incorporated the economic costs of greenhouse gas emissions facilitated by the mine expansion as a counter-balance to the economic benefits posed in the form of jobs and tax collections. Both Cavan and Watters found that such analysis is appropriate: if the federal government wishes to tout the economic benefits posed by the expansion in the EIS, it should also weigh the costs associated with it, Watters wrote. She ordered the department to include them in its analysis.
She didn’t agree with the magistrate’s finding that interior officials erred by not incorporating the “Social Costs of Carbon” — a framework that attempts to put a dollar amount to economic damages associated with carbon dioxide emissions — in its analysis. Watters cited a Ninth Circuit ruling describing the framework as “too uncertain” to provide value, though she reminded the agency “of its obligation to provide high quality, accurate scientific analysis” about the economic costs of the Rosebud mine expansion.
“The court found that OSM once again put its thumb on the scale by considering the benefits of the mine but refusing to disclose the on-the-ground impacts that coal mining and burning have on area waters, wildlife, and the climate,” Western Environmental Law Center attorney Melissa Hornbein said in the release. “The law doesn’t allow that type of gamesmanship, and the climate and our stressed water resources deserve better.”
Westmoreland Mining, the parent company to Rosebud Mining, LLC, didn’t immediately return a request for comment Tuesday.
The environmental groups also took issue with parts of Cavan’s February ruling, namely his finding that the federal government weighed an adequate range of alternatives in its EIS. They appealed that portion of his ruling. Watters sided with them, writing that two alternatives with identical geographic footprints, changed only by mitigation measures the agency itself acknowledged would have “negligible benefit” to the affected resources, wouldn’t suffice. (In his ruling, Cavan accepted the department rationale that a middle-ground alternative would have run afoul of Bureau of Land Management regulations and Montana laws requiring full recovery of coal, but Watters disagreed, arguing that a “viable” alternative existed, but the agency had refused to examine it. She ordered it to consider a wider range of alternatives in its analysis.)
Westmoreland, which was joined in its appeal by a union group representing about 400 Montana miners, had also argued that the plaintiffs lacked standing to file the lawsuit.
Watters agreed with Westmoreland that WildEarth Guardians lacked standing, writing that its climate and energy program director demonstrated only vague ties to the area and lacked a pre-existing personal connection to the area. She therefore dismissed WildEarth Guardians from the lawsuit, but found that the other two environmental groups had successfully demonstrated standing.
She wrote Johnson, with MEIC, “averred more than a generalized interest in the area” and his “environmental activism served to enhance, not disprove his connection to the area.” She applied a similar analysis to the question of standing for Steve Gilbert, with the Sierra Club.
The Interior department now has 19 months to incorporate cumulative surface water impacts, indirect effects associated with Yellowstone River withdrawals, socioeconomic impacts of GHGs and a broader range of alternatives to the proposed in its analysis.
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