The opinion of the court was delivered by: Colleen Kollar-kotelly , United States District Judge
Department of Interior, U.S. BUREAU OF LAND MANAGEMENT, and U.S. FISH AND WILDLIFE SERVICE, ANTELOPE COAL LLC, NATIONAL MINING ASSOCIATION, and STATE OF WYOMING, Intervenors/Defendants.
Plaintiffs Wildearth Guardians, Defenders of Wildlife, and the Sierra Club (collectively, "Plaintiffs") commenced this action on July 13, 2010, challenging the U.S. Department of Interior's decision to authorize the leasing of certain public lands in northeastern Wyoming for coal mining operations. Named as defendants are Ken Salazar, in his official capacity as Secretary of the U.S. Department of Interior, the U.S. Bureau of Land Management (the "Bureau"), and the U.S. Fish and Wildlife Service (collectively, the "Federal Defendants"). Presently before the Court are three separate motions -- one by  Antelope Coal LLC ("Antelope"), a second by  the National Mining Association ("NMA"), and a third by  the State of Wyoming ("Wyoming") -- to intervene as defendants in this action (collectively, the "Putative Intervenors" or, simply, the "Intervenors"). Plaintiffs contest the three motions to intervene, albeit only in part and in a severely limited fashion; the Federal Defendants, for their part, take no position on the Putative Intervenors' participation in this action. For the reasons set forth below, the Court shall grant all three motions, subject to certain limitations and conditions.
For purposes of resolving the motions to intervene presently before the Court, the well-pleaded allegations in the Complaint are assumed to be true.*fn1 Secs. & Exch. Comm'n v. Prudential Secs. Inc., 136 F.3d 153, 156 n.4 (D.C. Cir. 1998) (citing Williams & Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd., 840 F.2d 72, 75 (D.C. Cir. 1988)). Additionally, where appropriate, the Court shall refer to the non-conclusory allegations and record evidence offered by the Putative Intervenors in support of their motions to intervene. See Foster v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981) ("motions to intervene are usually evaluated on the basis of well pleaded matters in the motion, the complaint, and any responses of opponents to intervention."); Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001) ("Courts are to take all well-pleaded, nonconclusory allegations in the motion to intervene, the proposed complaint or answer in intervention, and declarations supporting the motion as true absent sham, frivolity or other objections."). While the Court shall cite only to those portions of the record immediately relevant to its disposition today, the Court notes that it has considered each of the parties' submissions and the attachments thereto, including, but not limited to, the following documents:
* Antelope's Motion to Intervene: Antelope's Unopposed Mot. to Intervene as Def. ("Antl.'s Mem."), Docket No. ; Antelope's Reply to Pls.' Resp. to Wyoming's Mot. to Intervene ("Antl.'s 1st Reply"), Docket No. ; Antelope's Reply to Pls.' Resp. to NMA's Mot. to Intervene ("Antl.'s 2d Reply"), Docket No. ; Antelope's Not. of Suppl. Authority in Supp. of its Unopposed Mot. to Intervene, Docket No. .*fn2
* NMA's Motion to Intervene: NMA's Mot. to Intervene as Def. with Supp. Stmt. of P. & A. ("NMA's Mem."), Docket No. ; Decl. of Katie Sweeney in Supp. of NMA's Mot. to Intervene as Def. ("Sweeney Decl."), Docket No. [28-1]; Pls.' Resp. to Mot. to Intervene by NMA ("Pls.' Opp'n to NMA's Mot."), Docket No. ; Reply Stmt. of P. & A. in Supp. of NMA's Mot. to Intervene as Def., Docket No. .
* Wyoming's Motion to Intervene: Mem. of Law in Supp. of Wyoming's Mot. to Intervene ("Wyo.'s Mem."), Docket No. [14-1]; Aff. of Harold D. Kemp ("Kemp Aff."), Docket No. [14-2]; Pls.' Resp. to Mot. to Intervene by Wyoming ("Pls.' Opp'n to Wyo.'s Mot."), Docket No. ; Wyoming's Reply to Pls.' Resp. to Wyoming's Mot. to Intervene ("Wyo.'s Reply"), Docket No. ; Pls.' Not. of Suppl. Authority, Docket No. .
Before proceeding further, the Court pauses to make an overarching observation about the nature of Plaintiffs' opposition to the present motions, which is limited. Significantly, although the motions now before the Court are contested in part, Plaintiffs have completely failed to rebut or otherwise dispute, in any meaningful sense, the factual showing made by each of the Putative Intervenors in support of their respective applications to intervene in this action. Accordingly, unless otherwise noted, the Court shall treat the Putative Intervenors' description of the relevant facts as conceded for purposes of resolving the present motions. See Tanter v. Dep't of Interior, 432 F. Supp. 2d 58, 62 (D.D.C. 2006) (treating factual allegations as conceded based upon party's failure to contest those allegations); Cobell v. Norton, 355 F. Supp. 2d 531, 543 (D.D.C. 2005) (same). This observation may be unnecessary, as there appears to be relatively little disagreement on the underlying facts; nevertheless, the Court notes that it renders its decision, as it must, upon the record created by the parties, to which Plaintiffs' contributions have been few.
Given the procedural posture of the case, nothing in the Court's opinion today should be construed as opining on the ultimate merits of the parties' respective legal claims and defenses or the likelihood that Plaintiffs will be able to secure the relief requested, nor as taking any factual assertions to be conclusively established for purposes of this litigation.
A. The Leasing of Public Lands for Coal Mining Operations
action touches upon the Bureau's practice and procedure with respect
to the leasing of public lands for coal mining operations, of which
only the broadest contours require discussion here. The relevant
federal regulations contemplate two distinct coal leasing processes,
commonly referred to as the "Competitive Leasing" process and the
"Lease-by-Application" process. 3d Compl. ¶ 28; see generally 43
C.F.R. pt. 3420 (regulations governing the two processes).*fn3
The two processes may be described more fully as follows:
* The Competitive Leasing Process: The Competitive Leasing process applies in areas designated as "Coal Production Regions," the boundaries of which the Bureau is empowered to alter after publication of an appropriate notice. 3d Compl.¶¶ 28, 30. Primarily an agency-driven process, the Competitive Leasing process begins when the Bureau identifies public lands for potential use for coal mining operations and offers competitive coal leases for sale. Id. ¶¶ 27-28. When operating under the Competitive Leasing process, the Bureau is required to consider the regional environmental impacts of prospective coal mining operations and consider such impacts when setting leasing levels on a region-wide basis. Id. ¶¶ 28-29.
* The Lease-by-Application Process: In contrast to the Competitive Leasing process, the Lease-by-Application process is animated primarily by coal companies, which assume responsibility in the first instance for identifying public lands for potential use and proposing specific tracts for leasing. Id. ¶¶ 5, 32. As characterized by Plaintiffs, the more site-specific Lease-by-Application process inhibits the Bureau's ability to limit coal mining operations based upon the cumulative environmental impacts caused by region-wide coal mining activities. Id.
B. The Decertification of the Powder River Basin
At one point in time, a total of six regions across the United States were designated as Coal Production Regions, within which the Competitive Leasing process applied. NMA's Mem. at 6; see also Public Participation in Coal Leasing, 64 Fed. Reg. 52239-02, 52240 (Sept. 28, 1999) (identifying the six Coal Production Regions). By the late 1980s, however, the Bureau started decertifying Coal Production Regions due to a declining demand for coal and perceived inefficiencies attendant to the Competitive Leasing process. NMA's Mem. at 6; see also Public Participation in Coal Leasing, 64 Fed. Reg. at 52240 (noting that, "[f]or a number of years, [the Bureau] has competitively leased Federal coal exclusively through the leasing-on-application process."). The Powder River Basin, an area covering approximately 24,000 square miles across northeastern Wyoming and southeastern Montana, was the last of the six regions to be decertified. 3d Compl. ¶¶ 1, 23; NMA's Mem. at 6; see also Proposed Decertification of All or a Portion of the Powder River Coal Production Region ("Decert. Not."), 54 Fed. Reg. 6339-01 (Feb. 9, 1989).
The Powder River Basin, the single largest source of coal in the United States, was first designated as a Coal Production Region in November 1979. 3d Compl. ¶¶ 1, 26; see also Identification of Coal Production Regions, 44 Fed. Reg. 65196 (Nov. 9, 1979). For the next decade, leasing within the Powder River Basin occurred pursuant to the Competitive Leasing process. On January 9, 1990, however, the Bureau decertified the region, thereby replacing the Competitive Leasing process with the Lease-by-Application process. 3d Compl.¶¶ 6, 31. The Bureau's stated rationales for decertification included the administrative efficiencies associated with the Lease-by-Application process and the then-limited leasing interest in the region. Id. ¶ 31; see also Decert. Not., 54 Fed. Reg. at 6340 ("The reason for . . . decertification is to allow for an accommodation of the limited leasing potential within the subject areas, during the current soft coal market, and with the maximum administrative efficiency"). In the twenty years since decertification, coal production in the Powder River Basin has increased significantly, and at a higher rate than other domestic coal production. 3d Compl. ¶ 33. To this day, coal leasing in the Powder River Basin remains subject to the Lease-by-Application process.
C. The Bureau's Decision Authorizing the Leasing of the West Antelope II Tracts
Although this action unquestionably implicates broader issues concerning the leasing of public lands for coal mining operations, the immediate dispute is actually quite narrow. On April 6, 2005, pursuant to the Lease-by-Application process, Antelope filed an application with the Bureau requesting that certain public lands containing federal coal reserves in the Wyoming portion of the Powder River Basin -- namely, approximately 4,746 acres of land immediately adjacent to Antelope's pre-existing coal mining operations in Campbell and Converse Counties, Wyoming -- be offered up for competitive lease sale to interested parties. Id. ¶ 35; see also Not. of Intent to Prepare an Envtl. Impact Stmt., 71 Fed. Reg. 61064-02 (Oct. 17, 2006). Ultimately, the Bureau authorized the sale of leases covering the designated area. 3d Compl. ¶¶ 7, 34; see also Not. of Availability of Record of Decision, 75 Fed. Reg. 16502-01 (Apr. 1, 2010); Record of Decision ("Rec.") (Mar. 25, 2010), available at http://www.blm.gov/wy/st/en/info/NEPA/ cfodocs/West_Antelope_II.html.
More specifically, the Bureau decided to divide the land identified by Antelope into two separate tracts -- designated as the "West Antelope II" tracts -- reasoning that the northernmost tract would be of greater interest to companies other than Antelope. 3d Compl. ¶¶ 63-64; Rec. at
6. Each tract would be offered for lease at separate, competitive sealed-bid sales. Rec. at 6. In the event the highest bid received at each sale met or exceeded the fair market value for the leases and all other leasing requirements were met, the leases would be issued to the successful qualified bidder or bidders. Id.
Notably, in the course of reaching this decision, the Bureau prepared an Environmental Impact Statement (the "EIS"), a subject of considerable dispute among the parties. 3d Compl. ¶ 63; see also Not. of Availability of Final Envtl. Impact Stmt., 74 Fed. Reg. 4228-01 (Jan. 23, 2009); Final Envtl. Impact Stmt. (Dec. 8, 2008), available at http://www.blm.gov/wy/st/en/info/ NEPA/cfodocs/West_Antelope_II.html. The EIS, designed to provide agency decision-makers and the public with a complete and objective evaluation of the environmental impacts associated with the contemplated leasing of the West Antelope II tracts, is several hundred pages in length and took over two years to prepare. Rec. at 9-10; Not. of Intent to Prepare an Envtl. Impact Stmt., 71 Fed. Reg. 61064-02 (Oct. 17, 2006); Final Envtl. Impact Stmt.
D. The Contours of the Present Action
Plaintiffs challenge the Bureau's decision to authorize the leasing of the West Antelope II tracts on four principal fronts.
First, Plaintiffs allege, in essence, that the Bureau acted arbitrarily, capriciously, or otherwise not in accordance with law by authorizing the leasing of the West Antelope II tracts without first re-certifying the Powder River Basin as a Coal Production Region. 3d Compl. ¶¶ 5-7, 98-105. By Plaintiffs' account, if the Powder River Basin had been re-certified as a Coal Production Region, any coal leasing -- including the future leasing of the West Antelope II tracts -- would have to be approved pursuant to the Competitive Leasing process, which imposes upon the Bureau an obligation to evaluate the regional environmental impacts of prospective coal mining operations when setting regional leasing levels, as opposed to the more site-specific Lease-by-Application process actually used to approve the leasing of the West Antelope II tracts.
Second, Plaintiffs contend that the Bureau violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., by, inter alia, failing to adequately analyze the direct and indirect effects of carbon dioxide emissions that would result from leasing the West Antelope II tracts (including the ultimate combustion of the coal mined from those tracts), as well as the cumulative environmental impacts from other past, present, and reasonably foreseeable activities in the Powder River Basin. 3d Compl. ¶¶ 8, 106-118.
Third, Plaintiffs assert that the Bureau violated the Federal Land Policy and Management Act, 43 U.S.C. §§ 1701 et seq., by failing to appropriately analyze the impact of leasing the West Antelope II tracts pursuant to federal air quality standards. 3d Compl. ¶¶ 9, 119-128. For example, Plaintiffs allege that the Bureau failed ...