Montana Environmental Information Center v. Haaland, CV No. 19-130-BLG-SPW-TJC (D. Mont)(Feb. 2, 2022)

Montana Environmental Information Center v. Haaland, CV No. 19-130-BLG-SPW-TJC (D. Mont)(Feb. 2, 2022)(Findings & Recommendation of Magistrate Judge)(“Findings and Recommendation”); CV No. CV 19-130-BLG-SPW (D. Mont)(Sept. 30, 2022)(Order Adopting Findings and Recommendation of Magistrate Judge)(“Order”).

In 2019, the Office of Surface Mining (OSM) approved a proposed expansion of the Rosebud Mine, a surface coal mine in southeastern Montana.  The mine has operated since 1968 and supplies coal to the Colstrip Power Plant, which is adjacent to the mine.  To produce electricity, the power plant draws water from the Yellowstone River and consumes 22,000 – 50,000 acre feet of water annually.  Findings & Recommendation, p. 3.  The mine operator sought to add an additional 6,500 acres to the mine, which would yield approximately 70.8 million tons of coal over an eight-year period.  Id.

A coalition of environmental organizations challenged OSM’s decision, alleging that the environmenal impact statement (EIS) prepared for the mine expansion did not provide a reasonable range of alternatives and failed to adequately consider: 1) the cumulative impacts of the mine expansion on surface water; 2) the adverse impacts of greenhouse gas emissions; and 3) the effects of water withdrawal from the Yellowstone River.  The organizations also alleged that the agency did not properly follow Endangered Species Act requirements designed to protect an endangered fish species.  Findings & Recommendation, p. 4.

A magistrate judge provided initial findings in the case, agreeing with the plaintiffs in part that the EIS was inadequate and recommending that the OSM’s decision be remanded to agency without vacatur.  Findings & Recommendation, pp. 36-38.  The magistrate did not reach the Endangered Species Act claim. On review, the federal district court adopted the magistrate’s legal findings and recommendations in part and rejected them in part, as described below.  The district court adopted the magistrate judge’s factual findings in full.  Order, p. 7.

Cumulative Impacts

On the issue of cumulative impacts analysis, the district court declared that the EIS lacked “quantified or detailed” analysis of the mine expansion.  The EIS merely listed multiple actions in addition to mining that would cumulatively affect surface water and vaguely concluded in a few sentences that these actions would cause “short-term and long-term adverse cumulative impacts on surface water quality . . . that would range from minor to major.”  Order, p. 15 (quoting EIS for the mine expansion).  The district court rejected an argument by industry intervenors that the EIS provided ample information about cumulative impacts in other sections of the report.  According to the court, asking members of the public to piece together different sections of the EIS to reach conclusions about the cumulative impacts on surface water “contravenes the core of an EIS, which is to foster both informed decision-making and informed public participation.” Id., p. 17 (internal quotations removed).  The district court also declared that a cumulative hydrological impact assessment (CHIA) prepared by a state agency could not be incorporated into or tiered to the mine expansion EIS because the CHIA was issued after the EIS and was never made available to the public for comment.  Id., pp. 19-20.

Greenhouse Gas Emissions

The plaintiffs alleged that OSM presented a skewed socioeconomic analysis of the mine’s greenhouse gas (GHG) emissions by touting the benefits of the expansion in terms of employment and revenue while not accounting for the costs.  The plaintiffs criticized OSM’s refusal to employ the social cost of carbon (SCC) protocol to quantify the costs associated with GHG emissions from continued mining.  Findings & Recommendation, pp. 19-20.

The district court agreed with this claim, explaining that if an agency opts to describe the socioeconomic benefits of a proposal, “it must also quantify the costs, or offer non-arbitrary reasons for its decision not to do so.” Order, p. 22.  The district court declined to direct OSM to use any particular methodology, such as the SCC protocol, but reminded the agency of “its obligation to provide high quality, accurate scientific analysis on the economic costs of GHGs [from the mine expansion].” Id., p. 26.

Effects of Water Withdrawal

The EIS for the Rosebud coal mine expansion proposal neglected to consider the indirect impacts of water withdrawals from the Yellowstone River for electricity production at the Colstrip Power Plant, which uses coal from the mine. OSM argued that it was not required to analyze this issue because it was “beyond the scope” of impacts associated with expanding the Rosebud mine.  The district court fully adopted the magistrate’s findings that OSM should have considered the water withdrawals a foreseeable indirect impact of coal mining.  The magistrate explained that the operations of the mine and power plant are “intricately connected” and that the water withdrawals necessary for electricity generation at the Colstrip plant will occur if the mine is expanded to produce more coal.  Findings & Recommendation, pp. 25-26.  For that reason, OSM should have evaluated the impacts of water withdrawals on the Yellowstone River but failed to provide any rationale or reasoned analysis to explain why it did not.  Id., p. 26.  The magistrate rejected a number of additional arguments raised by the intervenors, including that water withdrawals would continue to occur even if mining stopped because the plant will operate with coal from other sources.  The magistrate found this argument factually lacking, noting that the power plant would have to make costly modifications and obtain additional permits to use coal from other sources.  Id., pp. 30-31.

Alternatives Analysis

The EIS for the proposed mine expansion examined three alternatives: a no action alternative and two action alternatives with similar levels of mining and surface disturbance.  Findings & Recommendation, pp. 33-34.  The plaintiffs argued that OSM should have considered a “middle-ground” alternative.  On this point, the district court came to a different conclusion than the magistrate.  The district court found the two action alternatives to be essentially identical, which is contrary to the requirement that agencies evaluate all reasonable alternatives to inform agency decisionmaking and facilitate public involvement. Order, pp. 27, 30.  The court also criticized OSM for “skirt[ing] its obligation to analyze a middle-ground alternative that was in-fact feasible . . . .”  Id., p. 33.

Relief

The district court adopted the magistrate’s recommendation that the decision be remanded to OSM, without vacatur, for further proceedings.  The court directed OSM to remedy the flawed EIS within 19 months.  Order, pp. 35-36.  If the EIS is not remedied within that time, it will be vacated.