Montana coal mine expansion deemed illegal by Ninth Circuit
(CN) — The federal government violated the National Environmental Policy Act when it approved the expansion of an underground coal mine in Montana, a divided Ninth Circuit panel ruled Monday.
In a 2-1 decision, the panel of judges found the Trump administration’s Department of Interior did not give enough weight to the environmental impacts of the added greenhouse gas emissions the mine expansion would lead to.
“Interior did not account for the emissions generated by coal combustion, obscuring and grossly understating the magnitude of the mine expansion’s emissions,” wrote U.S. Circuit Judge Morgan Christen, a Barack Obama appointee, for the panel.
“The lowest bar that we should expect our government to meet, when it leases public land to fossil fuel companies, is that they’re honest about the climate impacts of their choices,” said Nathaniel Shoaff, a senior attorney with the Sierra Club, one of the plaintiff’s in the case. “The Trump administration, which approved this project, wasn’t honest.”
A spokesperson for Signal Peak Energy, which had sought the mine’s expansion, did not return a phone call requesting comment. A spokesperson for the Department of the Interior said in an email, “We are reviewing the decision.”
Signal Peak’s Bull Mountain mine, about 30 miles north of Billings, Montana, is the country’s 20th most productive mine when measured by tons of coal produced, and the only underground mine in the state. Signal Peak was allowed to expand in 2018, adding more than 7,000 acres of land to its operations, comprising a checkerboard of federal, state and privately owned land containing 176 million tons of coal.
In approving the project, Interior had to prepare an environmental impact statement, quantifying both the costs and benefits of the project. Signal Peak had said that the mine’s expansion would lead to 190 million additional tons of greenhouse gas emissions over the next 11 1/2 years, for a total of 240 billion tons — including what the coal mine would have produced without expansion.
“This is a huge amount of greenhouse gasses,” said Shiloh Hernandez, the attorney who argued the appeal for the plaintiffs. “The annual emissions of this mine are greater than any single point source in the United States. It’s a big deal.”
How, then, to measure the impact of nearly a quarter of a billion tons of greenhouse gas emissions on the earth? The 2018-era Department of the Interior found it would have “no significant impact” and claimed the emissions would represent just .04% of the world’s total. But the plaintiffs argued that analysis wasn’t meaningful and didn’t actual measure anything.
“This really showed there’s a significant problem in the agency’s analysis of greenhouse gas emissions,” said Hernadez. “If you compare everything to global totals, it means that nothing an agency ever does will be significant. Which means they will have no impetus to change what they’re doing.”
The plaintiffs argued that it would be far better to use the Social Cost of Carbon metric, which, as the Ninth Circuit summarized, quantifies “the harm, in dollars, caused by each incremental ton of carbon dioxide emitted into the atmosphere in a given year.”
The Ninth Circuit agreed with the plaintiffs that the Department of Interior’s 2018 environmental impact statement “failed to articulate any science-based criteria of significance in support of its finding of no significant impact, but instead relied on the arbitrary and conclusory determination that the mine expansion project’s emissions would be relatively minor.”
The court stopped short, however, of ruling that the Social Cost of Carbon metric was the correct one in assessing the impact of greenhouse gas emissions.
“What is less clear,” Christen wrote for the panel, “is whether the agency had any other metric available to assess the impact of this project.”
In other words, the impact of greenhouse gas emissions have on the earth, via global warming, must be assessed, but the metric of assessing them is still to be determined.
“Courts have been reluctant to tell federal agencies a specific methodology for assessing greenhouse gas emissions,” said Hernandez. “But no methodology doesn’t work.”
In his dissent, U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee, wrote, “The courts are ill-equipped to step into highly politicized scientific debates like this, particularly with so little direction from either the legislative or executive branch.” He pointed out that the National Environmental Policy Act was passed more than 50 years ago, “long before the current scientific debate over GHS emissions materialized.”
He added: “Can we really expect scientists to agree on how many forest fires or other environmental harms in the proposed action area can be allocated to a 0.04% increase in annual global GHG emissions. Especially when scientists can hardly project the global GHG emissions 10 years from now with any similar accuracy?”
U.S. Circuit Judge Johnnie Rawlinson, a Bill Clinton appointee, rounded out the panel.
The plaintiffs had asked the court to vacate the project’s approval, which would have stopped the mining. Instead, the Ninth Circuit remanded the case. The lower court will have a number of options, including shutting down the mine, or asking the Biden administration for a new environmental review. That could lead to a big decision: Justify the climate impacts of the coal mine, or shutter it.
“Real climate leadership means leaving coal in the ground, particularly with public land,” said Shoaff. “That’s the choice facing the Biden administration. They’re the ones that get to decide what happens at Bull Mountain.”