Dylan Brown, E&E News reporter
Dec. 18, 2019
The 10th U.S. Circuit Court of Appeals yesterday reversed a lower court ruling, forcing the federal government to reconsider yet again where coal mining is allowed in “roadless” areas of Colorado.
As the judges noted in the ruling, the case is “the latest installment in a long-running dispute concerning road construction and coal leases” around the North Fork of the Gunnison River west of Denver.
In a 2-1 decision, the appellate court ordered another examination of a coal mining carve-out in the Colorado Roadless Rule.
The 2012 law protected 4.2 million acres of the Gunnison National Forest but allowed mining to continue on 19,100 acres home to two coal operations — the West Elk mine, Colorado’s biggest mine, and the Elk Creek mine, which shut down in 2013 and is actively being cleaned up.
The North Fork exception helped secure the rule’s passage, but immediately became an environmental group target.
In 2014, the U.S. District Court for the District of Colorado blocked a proposed West Elk expansion, citing issues with the greenhouse gas emissions analysis in the Forest Service’s review under the National Environmental Policy Act (E&E News PM, June 27, 2014).
The decision vacated the entire North Fork exception until the Forest Service prepared a supplemental final environmental impact statement and readopted the exception in 2016.
West Elk owner Arch Coal Inc. then applied for two lease modifications at the mine, adding 1,720 acres and 10.1 million tons of coal.
Federal regulators did another supplemental final EIS and approved the leases.
Environmentalists sued again, but the district court rejected the lawsuit.
Yesterday, 10th Circuit Judges Mary Beck Briscoe and Carlos Lucero overturned that decision, siding in part with environmentalists.
The Clinton appointees said the Forest Service “failed to provide a logically coherent explanation” for not considering an alternative that would have removed 4,900 acres from the North Fork exception.
The Pilot Knob area, home to the Elk Creek mine, is separated from the rest of exception by the North Fork River and U.S. Highway 133.
“That alternative was not ‘remote, speculative, or impractical or ineffective’ as judged against the Forest Service’s statutory mandate and the project goals,” the judges wrote. And it was “significantly distinguishable from the alternatives already considered.”
The decision vacates the entire North Fork exception because nothing in the roadless rule allows the exception to be divided into pieces, the judges added.
“Pilot Knob is an irreplaceable treasure, providing winter range for deer and bald eagles, severe winter range for elk, and historic and potential future habitat for the threatened Gunnison sage grouse,” said Matt Reed, public lands director for High Country Conservation Advocates. “It is the last place we should be tearing up for coal mining.”
Judge Paul Kelly dissented. The George H.W. Bush appointee argued that the exception was created to ensure that Colorado was not “foreclosing opportunities for exploration and development of coal resources.”
“This court’s role under NEPA is not to ‘substitute our judgment’ about what alternatives are most effective to achieve an action’s purpose, but only to ‘determine whether the necessary procedures have been followed,’” Kelly wrote, citing precedent.
“The agency met its mandate here by considering a reasonable range of alternatives and ‘briefly discuss[ing]’ its reasons for eliminating others from detailed analysis.”
All three judges, however, rejected environmental groups’ demand that the Bureau of Land Management reconsider the two leases based on concerns about methane flaring.
Environmental groups argued that sufficient data existed surrounding emissions from West Elk, Colorado’s largest single source of methane.
“But they do not offer evidence indicating that the information available at the time was sufficient to analyze the feasibility and environmental impacts of methane flaring without the site-specific exploration data and engineering designs deemed necessary by the agencies,” the judges wrote.
Environmental groups continue pursuing separate lawsuits over West Elk methane.