United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For NATIONAL PARKS CONSERVATION ASSOCIATION, Plaintiff: Deborah M. Murray, LEAD ATTORNEY, Charlottesville, VA; Catherine Malina, PRO HAC VICE, Charlottesville, VA.
For LISA JACKSON, Administrator of the U.S. Environmental Protection Agency, KENNETH LEE SALAZAR, Secretary of the United States Department of Interior, GLENDA OWENS, Acting Director of the U.S. Office of Surface Mining Reclamation and Enforcement, Defendants: Mark Arthur Brown, Sr., LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Wildlife & Marine Resources Section, Washington, DC; Ruth Ann Storey, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Land & Natural Resources Division, Ben Franklin Station, Washington, DC; Brian Hamilton Lynk, U.S. DEPARTMENT OF JUSTICE, Environmental Defense Section, Washington, DC.
For NATIONAL MINING ASSOCIATION, Intervenor Defendant: David Yolun Chung, Kirsten L. Nathanson, CROWELL & MORING, LLP, Washington, DC.
BARBARA J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE.
In this case the plaintiff, National Parks Conservation Association (" NPCA" ), an environmental group, challenges a final rule that governs the operation of coal mining activities near and through streams. The rule was published by the Office of Surface Mining Reclamation and Enforcement (" OSM" ) of the U.S. Department of the Interior (" DOI" ) and is entitled " Excess Spoil, Coal Mine Waste, and Buffers for Perennial and Intermittent Streams," 73 Fed. Reg. 75,814 (Dec. 12, 2008) (hereinafter " 2008 Rule" or " Rule" ). The 2008 Rule revised a stream protection rule that had been in effect since 1983 (the " 1983 stream buffer zone rule" ). See Stream Buffer Zone Rule, 48 Fed. Reg. 30,312 (June 30, 1983). The Environmental Protection Agency (" EPA" ) concurred in OSM's promulgation of the Rule. The plaintiff seeks to have the court invalidate the 2008 Rule. NPCA also seeks to have the court determine that a 1996 Biological Opinion issued by the Fish and Wildlife Service (" Service" ) is invalid and to order OSM to reinitiate formal consultation with the Service.
The defendants are S.M.R. Jewell, Secretary of the United States Department of the Interior, Joseph G. Pizarchik, Director of the Office of Surface Mining Reclamation and Enforcement, and Gina McCarthy, Administrator of the United States Environmental Protection Agency (collectively, the " Federal Defendants" ). Additionally, the National Mining Association (" NMA" ) has intervened as a defendant in the case. NPCA alleges violations of the Administrative Procedure Act (" APA" ), 5 U.S.C. § 706, section 7(a)(2) of the Endangered Species Act (" ESA" ), 16 U.S.C. § 1536(a)(2), various provisions of the Surface Mining Control and Reclamation Act of 1977 (" SMCRA" ), 30 U.S.C. § § 1201-1328, and sections 101 and 303 of the Clean Water Act (" CWA" ), 33 U.S.C. § § 1251, 1313.
This court's decision primarily analyzes NPCA's claims under the ESA. As to those claims, NPCA argues that OSM violated
section 7(a)(2) of the ESA by not consulting with the Service prior to promulgating the 2008 Rule. NPCA also contends that it was arbitrary and capricious for OSM to rely on a 1996 Biological Opinion to avoid its consultation duties and that OSM violated its ESA section 7 duties by not reinitiating with the Service. NPCA asks that the court vacate the 2008 Rule and the 1996 Biological Opinion and remand the matter to OSM. The Federal Defendants admit that it was legal error for OSM not to initiate consultation on the 2008 Rule and they request that the court vacate the 2008 Rule on that basis. See Answer (Dkt. No. 40) at ¶ ¶ 6, 59, 61-62. The Federal Defendants argue that the plaintiff's claim regarding OSM's reliance on the 1996 Biological Opinion should be dismissed as moot and that the plaintiff's remaining challenges to the 1996 Biological Opinion should be denied because the court lacks jurisdiction to consider them. NMA argues that OSM was not required to consult on the 2008 Rule and that even if consultation was required, the Rule should not be vacated.
Before the court is a series of cross-motions for summary judgment filed by NPCA and the Federal Defendants. NMA has filed oppositions and replies to these motions for summary judgment.
A. Surface Coal Mining
To reach coal that is buried below soil and rock, coal mine operators drill, blast, or use bulldozers to fracture the underlying rock. Administrative Record (" AR" ) at SBZ000125. The operators then remove the broken rock, which is known as " spoil." Id. The broken rock that was once compact takes up much more space once it has been excavated. Id. As a result, in areas with steep slopes, coal mine operators may not be able to return all of the spoil to the mined area in a stable manner. AR at SBZ000011. When that happens, some " excess spoil" may be placed in the upper reaches of valleys adjacent to the mined areas. Id.; see also AR at SBZ000003. This is known as a " valley fill." AR at SBZ000003, SBZ000195. These steep-slope valleys often have streams running through them and a valley fill buries the upper reaches of such streams. AR at SBZ000011. Valley fills are also associated with downstream effects on surface-water chemistry and macroinvertebrate communities. AR at SBZ000277. The placement of excess spoil in stream channels occurs primarily in the central Appalachian coal fields. AR at SBZ000266.
B. Statutory and Regulatory Framework
(1) The Surface Mining Control and Reclamation Act of 1977 and the Stream Buffer Zone Rule
The SMCRA, which has as one of its purposes to " establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations," see 30 U.S.C. § 1202(a), does not require a buffer zone around streams. AR at SBZ000004. Nevertheless, since the initial regulatory program under the SMCRA, OSM has provided for a 100-foot buffer zone around streams, with variances allowing for the disposal of excess spoil within the buffer zone
under certain circumstances. See AR at SBZ000004-05.
A state can obtain primary jurisdiction (" primacy" ) over the regulation of surface coal mining and reclamation operations within its borders by submitting a program proposal to the Secretary of the Interior that meets or exceeds the minimum requirements of the SMCRA and that is approved by OSM. 30 U.S.C. § 1253. In those states that do not obtain primacy, OSM operates a federal regulatory program. 30 U.S.C. § 1254.
(2) Section 7(a)(2) of the Endangered Species Act
Section 7(a)(2) of the Endangered Species Act requires " [e]ach Federal agency," in consultation with the appropriate wildlife agency, to " insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an 'agency action') is not likely to jeopardize the continued existence of any endangered species or threatened species" or adversely modify a species' critical habitat. 16 U.S.C. § 1536(a)(2). When a federal agency's proposed discretionary action " may affect listed species or critical habitat," the agency must initiate formal consultation with the Service or the National Marine Fisheries Service (" NMFS" ). 50 C.F.R. § § 402.03, 402.14(a). There are two exceptions: if preparation of a biological assessment or informal consultation shows that the agency action is not likely to adversely affect listed species or critical habitat, then the agency need not initiate formal consultation. 50 C.F.R. § 402.14(a)-(b); see also Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1034, 380 U.S.App.D.C. 102 (D.C. Cir. 2008). All of this means that an agency avoids the consultation requirement for a proposed discretionary action only if it determines that its action will have " no effect" on threatened or endangered species or critical habitat. Ctr. for Biological Diversity v. U.S. Dep't of Interior, 563 F.3d 466, 475, 385 U.S.App.D.C. 257 (D.C. Cir. 2009) (" If the agency determines that its action will not affect any listed species or critical habitat, . . . then it is not required to consult with NMFS or Fish and Wildlife." ).
The " may affect" threshold for triggering the consultation duty under section 7(a)(2) is low. See Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1027 (9th Cir. 2012)
(en banc) (" [A]ctions that have any chance of affecting listed species or critical habitat--even if it is later determined that the actions are 'not likely' to do so--require at least some consultation under the ESA." ). " Any possible effect, whether beneficial, benign, adverse, or of an undetermined character, triggers the formal consultation requirement." Interagency Cooperation--Endangered Species Act of 1973, 51 Fed. Reg. 19926, 19949-50 (June 3, 1986). After an agency engages in the formal consultation process, the Service or the NMFS issues a biological opinion which advises the agency whether jeopardy is likely to occur for a listed species or its habitat and, if so, whether " reasonable and prudent alternatives" ...