High Country Conservation Advocates v. USFS, 52 F.Supp.3d 1174 (D. Colo. June 27, 2014)

Climate Change
Mining Coal mining

High Country Conservation Advocates v. USFS, 52 F.Supp.3d 1174 (D. Colo. June 27, 2014), available at https://www.leagle.com/decision/infdco20140630a94 


Environmental organizations challenged administrative decisions authorizing expanded coal mining operations on the grounds that the decisions were based on an inadequate and inaccurate environmental impact review.  The agencies responsible for said decisions “acknowledged that there might be impacts from GHGs in the form of methane emitted from mine operations and from carbon dioxide resulting from combustion of the coal produced,” but they asserted that such an analysis is impossible: 


Standardized protocols designed to measure factors that may contribute to climate change, and to quantify climatic impacts, are presently unavailable….


Predicting the degree of impact any single emitter of [greenhouse gases] may have on global climate change, or on the changes to biotic and abiotic systems that accompany climate change, is not possible at this time. As such, … the accompanying changes to natural systems cannot be quantified or predicted at this time.


Id. at 1190.  The court disagreed with the agencies, determining that a tool for assessing the impacts of GHGs to be emitted as a result of a project is and was available: the social cost of carbon protocol.  Id.  The court explained:


The protocol—which is designed to quantify a project’s contribution to costs associated with global climate change—was created with the input of several departments, public comments, and technical models. … The protocol is provisional and was expressly designed to assist agencies in cost-benefit analyses associated with rulemakings, but the EPA has expressed support for its use in other contexts.


Id.  Thus, the court concluded, it was unreasonable “to quantify the benefits of the lease modifications and then explain that a similar analysis of the costs was impossible when such an analysis was in fact possible,” even if the cost-benefit analysis was not required by law.  Id. at 1191. 


The court recognized the imprecise nature of estimating the costs of impacts caused by GHG emissions, but also recognized that excluding any estimate of such costs may be more problematic – and doing so without a reasonable explanation is illegal:


[T]here is a wide range of estimates about the social cost of GHG emissions. But neither the BLM’s economist nor anyone else in the record appears to suggest the cost is as low as $0 per unit. Yet by deciding not to quantify the costs at all, the agencies effectively zeroed out the cost in its quantitative analysis. …

Common sense tells me that quantifying the effect of greenhouse gases in dollar terms is difficult at best. The critical importance of the subject, however, tells me that a “hard look” has to include a “hard look” at whether this tool, however imprecise it might be, would contribute to a more informed assessment of the impacts than if it were simply ignored.


In short, the agencies might have justifiable reasons for not using (or assigning minimal weight to) the social cost of carbon protocol to quantify the cost of GHG emissions from the Lease Modifications. Unfortunately, they did not provide those reasons in the FEIS, and their post-hoc attempts to justify their actions, even if the Court were permitted to consider them, are unpersuasive. Therefore I find that the FEIS’s proffered explanation for omitting the protocol was arbitrary and capricious in violation of NEPA.


Id. at 1192-1193 (internal citation omitted).  Accordingly, the court set aside the government authorizations of the proposed expansion of coal mining operations and ordered the intervening mining companies to refrain “from proceeding with the Exploration Plan in any manner that involves any construction, bulldozing or other on-the-ground, above-ground or below-ground disturbing activity in the subject area.”  Id. at 1201.