Description: Challenge to new environmental review conducted for re-approval of mining plan modification allowing expansion of an underground coal mine in Montana.
350 Montana v. Haaland
Filing Date Type File Action Taken Summary 10/14/2022 Opinion and Order Download Petitions for rehearing and rehearing en banc denied and amended opinion issued. Ninth Circuit Denied Rehearing of Decision Finding NEPA Violations in Coal Mine Expansion Case. The Ninth Circuit Court of Appeals denied petitions for rehearing and rehearing en banc of its April 2022 decision holding that federal defendants’ consideration of the greenhouse gas emissions impacts of a Montana coal mine expansion violated the National Environmental Policy Act (NEPA). The Ninth Circuit issued an amended opinion that clarified the district court’s tasks on remand (whether to order an environmental impact statement (EIS) or to remand to the agency for a determination of whether to prepare a new environmental assessment or an EIS, and whether to vacate the agency approval of the expansion). 06/28/2022 Amicus Brief Download Brief filed by amici curiae State of Montana and 15 other states in support of petition for rehearing en banc. 06/21/2022 Petition for Rehearing Download Petition for panel rehearing filed by defendants/appellees. 06/21/2022 Petition for Rehearing Download Petition for rehearing and rehearing en banc filed by intervenor. 04/04/2022 Opinion Download District court judgment affirmed in part and reversed in part and case remanded to district court. Ninth Circuit Said Conclusion that Coal Mine Expansion’s Emissions Were “Minor” Was Arbitrary and Capricious. In a split opinion, the Ninth Circuit Court of Appeals ruled that federal defendants violated the National Environmental Policy Act (NEPA) by failing to provide a “convincing statement of reasons” why the impacts of a coal mine’s expansion on greenhouse gas emissions would be insignificant. The court found that the environmental assessment (EA) did not articulate “science-based criteria” for significance and relied on an arbitrary and capricious determination that the project’s emissions would be “relatively ‘minor,’” even though the EA calculated that greenhouse gas (GHG) emissions over the life of the project would total 0.44% of annual global emissions and the mine was projected to generate more greenhouse gases annually than the largest single point source in the U.S. The Ninth Circuit stated: “The lack of a science-based standard for significance is critical because the record before us reflects no dispute that GHGs cause global warming and have had dramatic effects on the environment. The only question is the extent to which this particular project’s GHGs will add to the severe impacts of climate change.” The court separately found that the EA’s comparisons of the project’s emissions with total U.S. emissions and total Montana emissions did not comply with NEPA because the federal defendants did not account for coal combustion emissions overseas, “obscuring and grossly understating the magnitude of … emissions relative to other domestic sources.” The Ninth Circuit concluded, however, that the defendants were not required to use the Social Cost of Carbon metric to quantify the environmental harms of the project’s greenhouse gas emissions. But the court said NEPA and the Administrative Procedure Act required that the defendants use some methodology beyond the “bare comparisons” employed in the EA. The dissenting judge concluded that the finding that the project’s incremental effects were minor was not arbitrary and capricious under the APA’s deferential review standard.
350 Montana v. Bernhardt
Filing Date Type File Action Taken Summary 03/09/2020 Opinion and Order Download Plaintiffs' motion for summary judgment granted in part and denied in part, EA vacated, and matter remanded. Federal Court Upheld Climate Change-Related Portions of New EA and FONSI for Coal Mine Expansion but Vacated EA on Other Grounds. The federal district court for the District of Montana largely rejected arguments that federal approval in 2018 of the expansion of an underground coal mine in south-central Montana violated the National Environmental Policy Act (NEPA) and the Endangered Species Act. The court previously enjoined approval of the expansion for failure to quantify the costs of greenhouse gas emissions associated with the action. The court concluded, however, that the Office of Surface Mining Reclamation and Enforcement (OSMRE) subsequently provided sufficient support for its conclusion in its 2018 environmental assessment (EA) that the Social Cost of Carbon was “too uncertain and indeterminate to aid … decision-making.” The court also rejected the plaintiffs’ argument that OSMRE failed to consider certain significance factors in the statement of reasons for its Finding of No Significant Impact, including factors related to climate change. In particular, the court found that the statement of reasons adequately considered the impact of greenhouse gas emissions on public health; that experts who commented on the Social Cost of Carbon and climate change did not raise a “substantial dispute” that would render the expansion “highly controversial”; that the presence of “some” uncertainty regarding long-term cumulative effects of greenhouse gases did not compel preparation of an environmental impact statement; and that a statement in the EA about greenhouse gases causing climate change did not raise “substantial questions” about the project’s cumulative effects. The court did conclude, however, that a failure to analyze the risk of train derailments violated NEPA. The court therefore vacated the 2018 EA and remanded to OSMRE. 08/30/2019 Reply Download Reply memorandum filed in support of federal defendants' cross-motion for summary judgment. 08/30/2019 Reply Download Reply brief filed by Signal Peak Energy in support of cross-motion for summary judgment. 08/12/2019 Response Download Combined response-reply filed in support of plaintiffs' motion for summary judgment. 07/29/2019 Motion for Summary Judgment Download Memorandum filed by federal defendants in support of cross-motion for summary judgment and opposition to plaintiffs' motion for summary judgment. 07/29/2019 Motion for Summary Judgment Download Brief filed by Signal Peak Energy in support of cross-motion for summary judgment and opposition to plaintiffs' motion for summary judgment. 06/28/2019 Motion for Summary Judgment Download Brief filed by plaintiffs in support of motion for summary judgment. 03/01/2019 Complaint Download First amended complaint filed. 02/11/2019 Motion to Intervene Download Brief filed in support of Signal Peak Energy, LLC's unopposed motion to intervene. 01/16/2019 Complaint Download Complaint filed. Lawsuit Filed Challenging New NEPA Review for Underground Coal Mine’s Expansion. Environmental groups filed a new lawsuit in federal district court in Montana challenging federal defendants’ re-approval of an expansion of the Bull Mountains Mine, an underground coal mine in Montana. The court previously vacated an environmental assessment prepared for the expansion, finding that the Office of Surface Mining had failed to take a hard look at indirect and cumulative effects of coal transportation and combustion and at foreseeable greenhouse gas emissions and the economic costs associated with emissions. In the new complaint, the plaintiffs alleged that the defendants had expanded and increased their analysis of the mine expansion’s economic benefits “while once more refusing to acknowledge and quantify the economic costs of the expansion,” ignoring “expert evidence that the harm from the mine expansion, from greenhouse gas pollution and toxic and harmful air pollution, would cost the public billions of dollars and be 5 to 15 times greater than the economic benefits of the mine.” The plaintiffs asserted that the defendants violated NEPA by failing to prepare an environmental impact statement and by once again failing to take a hard look at impacts and to consider reasonable alternatives, including replacing the mine with renewable resources.