United States District Court, D. Columbia.
Decided Date: March 30, 2014
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For WILDEARTH GUARDIANS, DEFENDERS OF WILDLIFE, SIERRA CLUB, Plaintiffs: James Jay Tutchton, LEAD ATTORNEY, DEFENDERS OF WILDLIFE, Centennial, CO; Samantha Ruscavage-Barz, LEAD ATTORNEY, WILDEARTH GUARDIANS, Santa Fe, NM.
For U.S. BUREAU OF LAND MANAGEMENT, Defendant: John S. Most, LEAD ATTORNEY, DEPARTMENT OF JUSTICE, Land & Natural Resources Div., Washington, DC.
For STATE OF WYOMING, Intervenor Defendant: James Kaste, LEAD ATTORNEY, STATE OF WYOMING, Attorney General's Office, Cheyenne, WY.
For ALPHA WYOMING LAND COMPANY, LLC, Intervenor Defendant: Kirsten L. Nathanson, LEAD ATTORNEY, CROWELL & MORING LLP, Washington, DC.
For PEABODY ENERGY CORPORATION, Intervenor Defendant: Merril Jay Hirsh, Peter S. Glaser, LEAD ATTORNEYS, TROUTMAN SANDERS LLP, Washington, DC.
RICHARD J. LEON, United States District Judge.
Plaintiffs WildEarth Guardians, Defenders of Wildlife, and the Sierra Club (collectively, " plaintiffs" ) brought suit against defendant United States Bureau of Land Management (" BLM" ) in connection with BLM's decision to lease two coal tracts in Wyoming's Powder River Basin (" PRB" )--the Belle Ayr North (" BAN" ) and Caballo West (" CW" ) tracts. Plaintiffs claim that BLM violated the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321-4335, and the Federal Land Policy Management Act (" FLPMA" ), 43 U.S.C. § § 1701-1784, because the agency failed to adequately consider the impacts on air quality and climate change resulting from the two leases before deciding to authorize those leases. Before the Court are plaintiffs' Motion for Summary Judgment, defendant's Cross-Motion for Summary Judgment, and defendant-intervenors' Cross-Motion for Summary Judgment. Upon consideration of the pleadings, record, and relevant law, plaintiffs' motion is DENIED, defendant's motion is GRANTED, and defendant-intervenors' motion is GRANTED.
I. Statutory and Regulatory Framework
This case concerns the leasing of public lands for coal mining. The Mineral Leasing Act (" MLA" ), 30 U.S.C. § 181 et seq., authorizes the Secretary of the Interior to lease publicly-owned lands for coal mining through a competitive bidding process. 30 U.S.C. § 201(a)(1). Pursuant to the MLA's implementing regulations, BLM may conduct competitive lease sales under one of two processes--competitive leasing based on regional leasing levels, or leasing-by-application (" LBA" ). See 43 C.F.R. pt. 3420. Under the LBA process, which was used in the instant case, an applicant identifies and proposes specific tracts of public land for leasing. See 43 C.F.R. subpt. 3425.
Before acting on a lease application, BLM must conduct an environmental review pursuant to NEPA. Under NEPA, all federal agencies are required to prepare an Environmental Impact Statement (" EIS" ) for any proposed " major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.3; see also Grand Canyon Trust v. FAA, 290 F.3d 339, 340, 351 U.S.App. D.C. 253 (D.C. Cir. 2002). NEPA's requirement to prepare an EIS serves two purposes:
it ensures that the agency " will have available, and will carefully consider, detailed information concerning significant environmental impacts" before making a decision on the proposed action, and it " guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). The EIS must analyze the direct, indirect, and cumulative impacts of the proposed action on the environment, 40 C.F.R. § § 1502.16, 1508.7, as well as " alternatives to the proposed action," 42 U.S.C. § 4332(2)(C)(iii). To satisfy NEPA, the agency must take a " hard look" at the environmental consequences of a proposed action before proceeding, but the statute does " not require agencies to elevate environmental concerns over other appropriate considerations." Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). NEPA thus mandates a process, not a particular substantive result. See Robertson, 490 U.S. at 350.
BLM is also subject to the statutory regime of FLPMA. Under that statute, BLM is responsible for managing the public lands. 43 U.S.C. § 1732. For a given area, BLM first develops a " land use plan," or Resource Management Plan (" RMP" ), which sets forth objectives for managing resources on those lands. Id. § 1712(a); Def.'s Mem. at 4. BLM's land use planning must " observe the principles of multiple use and sustained yield." 43 U.S.C. § 1712(c)(1); see also id. § 1732(a). Multiple use means " the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people," and " a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, . . . minerals, . . . and natural scenic, scientific and historical values . . ." Id. § 1702(c). Sustained yield means " achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use." Id. § 1702(h). Further, BLM's land use plans must " provide for compliance with applicable pollution control laws, including State and Federal air, water, noise, or other pollution standards or implementation plans." Id. § 1712(c)(8). Specific resource management actions by BLM, such as leasing the coal tracts at issue in this case, must conform to the applicable RMP. 43 C.F.R. § 1610.5-3(a).
II. Factual and Procedural Background
The Powder River Basin (" PRB" ), located in Wyoming and Montana, is the single largest source of coal in the United States, see Administrative Record (" AR" ) 9378, 11148, and over 90 percent of its coal deposits are owned by the federal government, AR 9389. Plaintiffs WildEarth Guardians, Defenders of Wildlife, and the Sierra Club, are non-profit conservation organizations with members located across the nation, including members who live, work, and recreate in the PRB. Compl. [Dkt. # 1] ¶ ¶ 13-15.
In 2004 and 2006, coal mining companies operating existing mines in the PRB applied to defendant BLM under the LBA regulations to lease the two coal tracts at issue in this case--the Belle Ayr North (" BAN" ) and Caballo West (" CW" ) tracts. On July 6, 2004, RAG Coal West, Inc. (predecessor to defendant-intervenor Alpha
Wyoming Land Company, LLC) filed an application to lease the BAN tract, which includes an estimated 221.7 million tons of minable coal. AR 3, 14. On March 15, 2006, Caballo Coal Company (predecessor to BTU Western Resources, Inc., which in turn is predecessor to defendant-intervenor Peabody Energy Company) applied to lease the CW tract, which includes an estimated 130.2 million tons of minable coal. AR 49, 58.
Pursuant to its obligations under NEPA, BLM published in the Federal Register a notice of its intent to prepare an EIS analyzing four proposed coal leases in the South Gillette area, including the BAN and CW tracts. See 72 Fed. Reg. 14,828 (Mar. 29, 2007). After publishing a draft EIS in October 2008 and accepting public comments, BLM prepared a final EIS (" FEIS" ) in August 2009 that spanned more than 600 pages. AR 3386, 2299-2489; see also 74 Fed. Reg. 41,430 (Aug. 17, 2009). The FEIS analyzed three alternatives for the BAN and CW tracts: (1) competitive lease sales of the two tracts as applied for; (2) a No Action alternative, in which the two tracts would not be leased (" Alternative 1" ); and (3) competitive lease sales of the two tracts as reconfigured by BLM (" Alternative 2" ). AR 1489-97; Compl. ¶ ¶ 53-54. Plaintiffs submitted comments on both the draft EIS and the FEIS, and proposed alternative measures that would " reduce, eliminate, or mitigate" carbon dioxide (" C02" ), ozone, nitrogen dioxide (" NO2" ), and particulate matter (" PM10" ) emissions, as well as adverse climate change impacts, from the proposed leases. Pls.' Mem. at 5; Compl. ¶ 55; AR 4035-53, 4125-27, 4111-20, 4245-67.
In July 2010, BLM approved two Records of Decision (" ROD" ) authorizing competitive lease sales for the BAN and CW tracts. See Compl. ¶ 53; Pls.' Mem. at 5; Def.'s Mem. at 1. Plaintiffs filed an administrative Notice of Appeal and Petition for Stay with the Interior Board of Land Appeals (" IBLA" ) in August 2010, challenging both RODs. AR 10770-10835. The IBLA denied the Petition for Stay in October 2010. AR 11718-25. Before it could rule on the merits of plaintiffs' challenge, however, plaintiffs moved to voluntarily dismiss their appeals in June 2011, and the IBLA granted that request in August 2011. AR 11775-76, 11778-80. Meanwhile, BLM offered the BAN tract for sale on July 13, 2011, and BTU Western Resources, Inc. placed the winning bid. Compl. ¶ 27; Def.'s Mem. at 8. BLM then offered the CW tract for sale on August 17, 2011, and Alpha Wyoming Land Company, LLC won the bid. Def.'s Mem. at 8-9.
Plaintiffs filed a complaint in this Court on August 16, 2011, bringing one count under NEPA and one count under FLPMA. Plaintiffs, who allege that their members have recreational, aesthetic, and economic interests in the public lands of the PRB, Compl. ¶ ¶ 13-15, claim that BLM violated NEPA by authorizing the leases of the BAN and CW tracts without adequately considering the decisions' impacts on air quality and climate change, Compl. ¶ ¶ 71-82. Specifically, plaintiffs claim that BLM's FEIS was legally inadequate because it failed to analyze the direct, indirect, and cumulative impacts on air quality of ozone, PM10, and NO2 emissions resulting from coal mining on the lease tracts, Compl. ¶ 79, as well as the direct, indirect, and cumulative effects on
climate change of greenhouse gas (" GHG" ) emissions, including CO2, resulting from lease development, Compl. ¶ ¶ 75-77. Plaintiffs also allege that BLM failed to sufficiently consider mitigation measures and reasonable alternatives to minimize emissions. Compl. ¶ ¶ 78, 80-81. Finally, under FLPMA, plaintiffs claim that BLM's authorization of the leases failed to comply with federal air quality standards. Compl. ¶ ¶ 83-92. Plaintiffs therefore seek declaratory and injunctive relief, including vacatur of the FEIS and the two RODs authorizing the leases. Compl. at 22-23.
STANDARD OF REVIEW
Challenges to agency action are reviewed under the Administrative Procedure Act (" APA" ), 5 U.S.C. § 551 et seq. Under the APA, a court must set aside agency action if it is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This standard of review is " highly deferential and presumes the validity of agency action." Neighborhood Assistance Corp. of Am. v. CFPB, 907 F.Supp.2d 112, 125 (D.D.C. 2012) (citing AT& T Corp. v. FCC, 220 F.3d 607, 616, 343 U.S.App. D.C. 23 (D.C. Cir. 2000)) (internal quotation marks omitted)). The court may not " substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Rather, the court will only set aside agency action as arbitrary and capricious if the agency committed a " clear error of judgment," such as when " the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. So long as the agency " examined the relevant data and articulated a satisfactory ...