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NATURAL RESOURCES DEFENSE COUNCIL v. HUGHES

September 27, 1977

NATURAL RESOURCES DEFENSE COUNCIL et al., Plaintiffs,
v.
ROYSTON C. HUGHES et al., Defendants


John H. Pratt, United States District Judge.


The opinion of the court was delivered by: PRATT

Introduction

 Plaintiffs in this action seek declaratory and injunctive relief to restrain defendants from further implementation of a new Federal Coal Leasing Program, and from entering into any coal leases unless and until defendants comply with their statutory obligations under § 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 (1970), as amended, Act of Aug. 9, 1975, Pub. L. No. 94-83, § 1, 89 Stat. 424.

 Plaintiffs allege that if the new Federal Coal Leasing Program is fully implemented they and their members will suffer irreparable injury in the form of, inter alia, destruction of land by strip mining, threats of pollution to ground and stream water, and harm to animals, crops, and vegetation from air pollution. It is further alleged that the environmental degradation which will occur from the implementation of the program was not adequately reflected in the Program's Environmental Impact Statement as required by § 102 of NEPA.

 This case is before the Court on cross-motions for summary judgment. Upon consideration of the full record herein, we hold that plaintiffs are entitled to summary judgment. The material facts are not in dispute.

 A. Parties

 Plaintiffs Natural Resources Defense Council, Inc. (NRDC), Environmental Defense Fund, Inc. (EDF), Northern Plains Resource Council (NPRC), and Powder River Basin Resource Council (PRBRC), are non-profit membership corporations. Each plaintiff was formed, inter alia, for the purpose of promoting the conservation and the protection of the natural resources of the public lands and minerals.

 (1) Defendant Robert Mendelsohn, Assistant Secretary Designate of the Department of the Interior for Policy, Budget, and Administration, serves a staff function to the Secretary in making decisions relating to the implementation of the Department's coal leasing program. *fn1" The Assistant Secretary reviews and endorses all draft and final Environmental Impact Statements (EIS) for the Department.

 (2) Defendant Cecil Andrus is Secretary of the Interior.

 (3) Defendant Curtis J. Berklund is the Director of the Bureau of Land Management (BLM) of the Department of the Interior and has been delegated authority by the Secretary of the Interior for the conduct, operation and activities of said Bureau, including implementation of the Department's coal leasing program.

 (4) Intervenor-Defendant Utah Power and Light Company is the principal electric public utility in the State of Utah.

 B. Coal Reserves

 The United States contains an estimated 1.58 trillion tons of identified coal reserves approximately one half of which are located in the western United States. The federal government owns approximately 60% of the western coal resource. Most of the large coal resource in the eastern and midwestern United States is privately owned.

 Federal coal has, however, played a minimal role in total U.S. production. In 1960 federal coal accounted for only 1.3% of the total coal mined. This mining share has increased only slightly to its current level approximating 3%.

 C. Federal Coal Leasing Policy Prior to 1973

 The Department of the Interior has general authority to manage the public lands of the United States, *fn2" and the responsibility to provide for the orderly development of the nation's mineral resources, *fn3" including coal resources. Historically, and until 1970, the coal leasing policy of the federal defendants was reactive in nature, responding to lease requests on a case-by-case basis without regard to the total reserves under lease or the need for additional leasing, and without an assessment of the environmental impacts of leasing. *fn4"

 In 1970, the Department of the Interior imposed a moratorium on coal leases and prospecting permits. This action resulted from a Bureau of Land Management coal lease study which discovered a sharp increase in the total federal acreage under lease and a consistent decline in coal production. See Holdings and Development of Federal Coal Leases, Division of Minerals, Bureau of Land Management, November 1970.

 From 1945 to 1970, the number of acres of federal land leased for coal development increased from about 80,000 to approximately 778,000, almost a ten-fold increase. In the same period, annual coal production from these federal lands declined from about 10 million tons in 1945 to approximately 7.4 million tons in 1970. These leased areas contain an estimated 16 billion tons of coal reserves, 10.6 billion of which are mineable by strip mining. An additional 10 billion tons are potentially recoverable from federal acreage for which "preference right" applications for coal leases have been filed. *fn5" The additional ten billion tons include quantities of coal which, due to the size of the lease unit, location, or transportation costs, may not be economically recoverable.

 D. Evolution of the Current Federal Coal Leasing Policy.

 In February 1973, the Secretary of the Interior announced a new coal leasing policy. The policy embodied short-term and long-term actions. The long-term policy consisted of the formulation of a planning system to determine the size, timing, and location of future coal leases, and the preparation of an environmental impact statement with respect to the entire federal coal leasing program. *fn6" The short-term action included a complete moratorium on the issuance of new prospecting permits, and a near-total moratorium on the issuance of new federal coal leases. Respecting the latter, new leases would be issued only to maintain existing mines or to supply reserves for production in the near future. *fn7"

 In October 1973, the Director of BLM established a schedule for the implementation of a new coal leasing system entitled Energy Minerals Allocation Recommendation System (EMARS). *fn8" The purpose of this new system was to allow the Interior Department to resume the issuance of federal coal leases by providing a mechanism for shifting to an environmentally acceptable coal leasing program.

 In May 1974, approximately seven months after the announcement of the proposed leasing program, the draft programmatic environmental impact statement (DEIS) was filed by the Interior Department with the Council on Environmental Quality *fn9" (CEQ).

 The release of the DEIS was followed by four months of public commentary during which five open hearings were held throughout the country. Approximately seven hundred pages of suggestions and criticism were received by the Department of the Interior. Among those comments were requests by the CEQ and the Environmental Protection Agency (EPA) that a new draft EIS be prepared. *fn10"

 Other federal agencies were almost universally critical of the draft statement. *fn11"

 In September 1975, the final programmatic EIS was released with some modifications. Prominent among the amendments were those which changed the Energy Minerals Allocation System to an Energy Minerals Activity System.

 The Secretary of the Interior, on January 26, 1976, announced the implementation of the new coal leasing policy (the long-term plan) based upon, inter alia, adoption of the Energy Minerals Activity Recommendation System. The new policy expressly lifted the moratorium on new major federal coal leasing which had been in effect since late 1970. The Secretary announced, however, that the short-term policy would be retained until the new competitive coal leasing system was fully operational.

 In February 1976, the Assistant Comptroller General of the United States, Phillip Hughes, testified before the Senate Interior Subcommittee on Minerals, Materials and Fuels on the new coal leasing program. Mr. Hughes pointed out that the GAO had recently completed a study concluding that the need for a new federal coal leasing policy had not been clearly established, and that if such a need did in fact exist the Interior Department could not, under the new system, effectively administer a coal leasing program. (Pl. Ex. 19, at 2).

 On April 1, 1976, the Comptroller General submitted a 70-page report to Congress outlining the deficiencies of the new program as analyzed by GAO. *fn12"

 On May 7, 1976, the Secretary of the Interior issued new regulations which effectively exempted "preference right" lease applications from the short-term criteria. 43 C.F.R. § 3521.1 (1977). The effect of these regulations was to confine the Department's short-term criteria to competitive leasing; "preference right" leases could and were issued without reference to the short-term criteria.

 The Interior Department on June 1, 1976, issued a call for the nomination of specific federal coal leasing tracts as suitable or unsuitable for federal leasing. Also on that date, final regulations clarifying the procedures for the implementation of EMARS were issued. 43 C.F.R. § 3520 (1976), revised at 42 Fed. Reg. 4,452-57 (1977), (to be codified in 43 C.F.R. § 3525).

 The Bureau of Land Management, on August 9, 1976, issued a statement that, pursuant to the nominations process which ended July 31, 1976, coal companies and private individuals had identified 680 tracts in eight states as areas upon which they would bid if offered for federal coal lease.

 The Secretary on July 25, 1977 adopted new short-term leasing standards to correct abuses in short-term leasing under previous criteria. Federal Defendants' Memorandum in Response to the Court's July 5, 1977 Request, Appendix IV. These revised standards also would permit the issuance of any "preference ...


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