`
`
`
`THE UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH
`
`
`UTAH PHYSICIANS FOR A HEALTHY
`ENVIRONMENT, SIERRA CLUB,
`NATURAL RESOURCES DEFENSE
`COUNCIL, NATIONAL PARKS
`CONSERVATION ASSOCIATION, GRAND
`CANYON TRUST, WILDEARTH
`GUARDIANS,
`
`
`
`MEMORANDUM DECISION AND
`ORDER
`
`Case No. 2:19-cv-00256-DBB
`
`District Judge David Barlow
`
`
`
`Plaintiffs,
`
`
`v.
`
`U.S. BUREAU OF LAND MANAGEMENT,
`an agency within the U.S. Department of the
`Interior; U.S. DEPARTMENT OF THE
`INTERIOR, a federal agency; JOSEPH R.
`BALASH, in his official capacity as Assistant
`Secretary for Land and Minerals within the
`Department of the Interior; DAVID
`BERNHARDT, in his official capacity as
`Secretary of the Department of the Interior,
`
`
`Defendants,
`
`and
`
`ALTON COAL DEVELOPMENT LLC, and
`STATE OF UTAH,
`
`
`Intervenor-Defendants.
`
`
`
`
`
`
`
`
`
`
`Plaintiffs Utah Physicians for a Healthy Environment, Sierra Club, Natural Resources
`
`Defense Council, National Parks Conservation Association, Grand Canyon Trust, and WildEarth
`
`
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`Case 2:19-cv-00256-DBB Document 73 Filed 03/24/21 PageID.655 Page 2 of 22
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`Guardians (Plaintiffs) challenge1 Defendant U.S. Bureau of Land Management’s (BLM) analysis
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`under NEPA of environmental impacts of a proposed coal lease authorizing the expansion of
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`Intervenor Defendant Alton Coal Development (Alton)’s coal mine onto 2,114 acres of federal
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`land and mineral estate.
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`Having considered the parties’ briefing,2 the administrative record,3 and relevant law, the
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`court grants in part and denies in part Plaintiffs’ requested relief.
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`I. STANDARD OF REVIEW
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`In its review of agency action, the court shall “hold unlawful and set aside agency action,
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`findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
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`otherwise not in accordance with law.”4 “The duty of a court reviewing agency action under the
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`‘arbitrary or capricious’ standard is to ascertain whether the agency examined the relevant data
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`and articulated a rational connection between the facts found and the decision made.”5
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`An agency’s decision is arbitrary and capricious if the agency (1) entirely failed to
`consider an important aspect of the problem, (2) 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, (3) failed to base its decision on consideration of the relevant factors, or
`(4) made a clear error of judgment.6
`
`
`
`
`1 Complaint for Declaratory and Injunctive Relief (Complaint), ECF No. 2, filed April 16, 2019.
`2 The briefing in this case consisted of the following materials: Plaintiff’s Opening Brief, ECF No. 46, filed
`February 26, 2020; Federal Defendants’ Response Brief on the Merits, ECF No. 61, filed April 13, 2020, Alton Coal
`Development LLC’s and State of Utah’s Joint Response to Plaintiffs’ Opening Brief, ECF No. 62, filed April 13,
`2020, and Plaintiffs’ Reply Brief, ECF No. 67, filed May 11, 2020.
`3 Notice of Filing of Administrative Record (AR), ECF No. 44, filed December 20, 2020.
`4 5 U.S.C. § 706(2)(A).
`5 Citizens’ Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008) (citation and internal
`quotation marks omitted).
`6 New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 704 (10th Cir. 2009) (citation and internal
`quotation marks omitted).
`
`2
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`
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`II. STATUTORY SETTING
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`Congress enacted the National Environmental Policy Act of 1969 (NEPA) recognizing
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`the “profound impact” of human activity on the natural environment, “particularly the profound
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`influences of population growth, high-density urbanization, industrial expansion, resource
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`exploitation, and new and expanding technological advances.”7 “The centerpiece of
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`environmental regulation in the United States, NEPA requires federal agencies to pause before
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`committing resources to a project and consider the likely environmental impacts of the preferred
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`course of action as well as reasonable alternatives.”8 “NEPA has two aims . . . , it places upon an
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`agency the obligation to consider every significant aspect of the environmental impact of a
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`proposed action” and “it ensures that the agency will inform the public that it has indeed
`
`considered environmental concerns in its decisionmaking process.”9 It is “strictly a procedural
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`statute” and does not require substantive results.10
`
`NEPA requires that “[b]efore embarking upon any ‘major federal action,’ an agency must
`
`conduct an environmental assessment (EA) to determine whether the action is likely to
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`‘significantly affect the quality of the human environment.’”11 Where the proposed action is not
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`likely to significantly affect the environment, the agency may issue a “[f]inding of no significant
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`impact” (FONSI), a document explaining the findings and the reasons why an environmental
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`impact statement (EIS) will not be prepared.12 By contrast, an EIS is required for all “major
`
`
`
`7 42 U.S.C. § 4331(a).
`8 Richardson, 565 F.3d at 703.
`9 Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1236–37 (10th Cir. 2011) (citation and internal quotation marks
`omitted).
`10 Id.
`11 Richardson, 565 F.3d at 703 (brackets omitted) (quoting 42 U.S.C. § 4332(2)(C)).
`12 40 C.F.R. § 1508.13.
`
`3
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`Federal actions significantly affecting the quality of the human environment.”13 An EIS must
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`“provide full and fair discussion of significant environmental impacts and . . . inform
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`decisionmakers and the public of the reasonable alternatives which would avoid or minimize
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`adverse impacts or enhance the quality of the human environment.”14 “[I]nherent in NEPA and
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`its implementing regulations is a ‘rule of reason,’ which ensures that agencies determine whether
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`and to what extent to prepare an EIS based on the usefulness of any new potential information to
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`the decisionmaking process.”15
`
`In reviewing agency action for NEPA compliance, courts look to determine whether
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`agencies have taken a “hard look” at the environmental consequences of their decisions.16
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`Ultimately, the “role of the courts is simply to ensure that the agency has adequately considered
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`and disclosed the environmental impact of its actions and that its decision is not arbitrary or
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`capricious.”17 “This standard of review is ‘very deferential’ to the agency's determination, and a
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`presumption of validity attaches to the agency action such that the burden of proof rests with the
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`party challenging it.”18
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`III. FACTUAL BACKGROUND
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`The focus of this case is the BLM’s approval of a lease expansion application by Alton.
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`The application sought to more than double the size of Alton’s Coal Hollow Mine in southern
`
`
`
`13 42 U.S.C. § 4332(C).
`14 40 C.F.R. § 1502.1.
`15 Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767 (2004).
`16 Sierra Club v. U.S. Dep’t of Energy, 867 F.3d 189, 196; Grand Canyon Trust v. FAA, 290 F.3d 339, 340–41 (D.C.
`Cir. 2002).
`17 Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97–98 (1983).
`18 Kobach v. United States Election Assistance Comm'n, 772 F.3d 1183, 1197 (10th Cir. 2014).
`
`4
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`
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`Utah.19 Alton’s operations would expand onto federal land and implicate federal mineral rights.20
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`In 2004, Alton filed a Lease by Application seeking to obtain a lease for the Mine expansion.21
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`In 2011, BLM published a Draft Environmental Impact Statement (DEIS) concerning the
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`proposed Lease by Application.22
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`During the comment period for the DEIS, BLM received more than 154,000 comments.23
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`Many of the comments were critical of the BLM’s analysis and urged the BLM to select the “no
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`action” alternative regarding the proposed expansion.24 Subsequent to this comment period,
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`BLM published a supplemental DEIS (SDEIS) in 2015.25 BLM received more than 39,000
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`comments on the SDEIS, including comments from Plaintiffs.26 Plaintiffs, in their comments,
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`also argued that the analytical information contained in the SDEIS was inadequate.27
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`BLM published its Final Environmental Impact Statement (FEIS) in July 2018.28 BLM
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`then issued the Record of Decision (ROD) approving the Lease Application for the Mine on
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`August 29, 2018.29 The ROD incorporated by reference the alternatives and analysis set forth in
`
`
`
`19 AR 162245.
`20 Id.
`21 AR 159487.
`22 AR162253–54.
`23 AR 162254.
`24 See AR 013068–69, 075611–6, 075543–609, and 075763–73.
`25 AR 159487.
`26 AR 162256.
`27 See AR 094950–5000.
`28 AR 156641.
`29 AR 162243.
`
`5
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`the FEIS.30 On April 16, 2019, Plaintiffs filed a complaint in this court challenging BLM’s
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`approval of the lease sale.31
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`IV. DISCUSSION
`
`Plaintiffs argue that BLM violated NEPA in three ways. First, BLM quantified the
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`greenhouse gases (GHGs) that would be generated directly and indirectly by the mine expansion,
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`but failed to analyze the impact of that pollution, all while promoting the economic benefits of
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`the mine and refusing to use the Social Cost of Carbon analysis to quantify the costs.32 Second,
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`BLM failed to analyze the cumulative impacts of all Department of Interior coal mining projects
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`under review, instead limiting its review to climate impact sources in two counties.33 Finally,
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`BLM failed to properly analyze the impact of mercury emissions despite the information
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`available to it.34
`
`A. The FEIS’ Handling of GHGs, Climate Change, and Socioeconomics Is Deficient.
`
`Plaintiffs argue that BLM violated NEPA by failing to disclose the indirect impact of
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`GHGs.35 Specifically, Plaintiffs contend that BLM simply performed a “bare arithmetic
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`emissions calculation” and “reduced to dollar amounts a project’s purported benefits,” but failed
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`“to do the same for the social and economic costs associated with GHG emissions.”36
`
`The FEIS addresses GHG emissions two ways. First, it performs a quantification of the
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`amount of GHGs that will be released from the direct and indirect effects of the proposal and
`
`
`
`30 AR 162246.
`31 See Complaint.
`32 Plaintiffs’ Opening Brief at 9.
`33 Id.
`34 Id.
`35 Plaintiffs’ Opening Brief at 14.
`36 Id. at 16.
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`6
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`then contextualizes the emissions globally. The FEIS notes that GHGs will be produced by the
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`combustion of the coal and by the project’s vehicles and equipment.37 It explains that “[t]he CO2
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`emissions for the Proposed Action or Alternative C would be 58,984 tons (53,510 metric
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`tons)[.]”38 and notes that “[t]his total includes all on-site emissions, as well as off-site emissions
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`from employee travel, haul truck traffic, cars and light duty trucks, and heavy duty diesel
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`vehicles.”39 As for the selected alternative (Alternative K1), BLM explained that direct
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`emissions “would be equal to or less than those reported for the Proposed Action and Alternative
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`C,” i.e., 58,984 tons of CO2 emissions.40
`
`As to indirect emissions, the FEIS states that the selected alternative is estimated to
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`produce approximately two million tons of coal. It then uses “EPA’s default emission factor of
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`4,810 pounds per ton of subbituminous coal (EPA 1998b) . . . to approximate annual CO2
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`emissions from combusting the 2 million tons of coal that would be produced from the tract.”41
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`BLM ultimately concluded that, “[b]ased on this emission factor, the end user(s) of the coal
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`produced from the tract would emit 4.8 million tons of CO2 per year (4.4 million metric tons).”42
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`Based on this information, BLM provided benchmarks against which to compare the mine
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`expansion’s anticipated emissions, with BLM explaining that coal from the tract would
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`contribute approximately 0.022% of total worldwide annual production and combustion of the
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`coal would constitute 0.013% of the total CO2 emissions from 2014 global fossil fuel
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`
`
`37 AR 159821.
`38 AR 159821.
`39 Id.
`40 Id.
`41 Id.
`42 Id. See also AR 159820 (discussing indirect impacts of mercury), AR 159916 (Table 4.14.2 addressing indirect
`GHG emissions from rail transport of mined coal).
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`7
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`combustion.43 As for national emissions, the FEIS states that “[g]lobally, the United States
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`accounted for approximately 16% of the CO2 added to the atmosphere through the combustion of
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`fossil fuels in 2014,” and provided the percentage of national emissions from other sources,
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`including coal mines.44
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`
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`Second, the FEIS qualitatively describes the effects of GHGs on the environment. In the
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`section on climate change, the FEIS states that “GHG emissions, which contribute to climate
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`changes, do not remain localized but become mixed with the general composition of the earth’s
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`atmosphere.”45 The FEIS quotes repeatedly from the Intergovernmental Panel on Climate
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`Change (IPCC), stating that “‘[w]arming of the climate system is unequivocal,’” that “most of
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`the temperature increases since the middle of the twentieth century ‘[are] very likely due to the
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`observed increase in anthropogenic [GHG] concentration.’”46 The FEIS further relies on the
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`IPCC to state that most of the “CO2 [is] coming from the combustion of fossils.”47
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`
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`The FEIS then describes the environmental impact of climate change as: “more frequent
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`heat waves, droughts, and fires; rising sea levels and coastal flooding, melting glaciers, ice caps,
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`and polar ice sheets; more severe hurricane activity and increases in frequency and intensity of
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`severe precipitation; spread of infectious diseases to new regions; loss of wildlife habitats; and
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`heart and respiratory ailments.”48 The FEIS describes some of these and others as
`
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`43 See AR 159822; see also AR 159821 (discussing that emissions from other sources are included in the global
`scale emissions and explaining that “33,733 million metric tons of CO2 were added to the atmosphere through the
`combustion of fossil fuels in 2014”).
`44 AR 159603.
`45 AR 160064.
`46 AR 160065.
`47 AR 160066.
`48 Id.
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`8
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`“socioeconomic costs.”49 The FEIS further states that “average surface temperatures in the
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`United States have increased, with the last decade being the warmest in more than a century of
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`direct observations.”50 It further identifies climate change environmental impacts in North
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`America as including “extended periods of high fire risk and large increases in burned areas;
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`increased intensity, duration, and frequency of heat waves; decreased snowpack, increased
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`winter and early spring flooding potentials, and reduced summer stream flows in the western
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`mountains; and increased stress on biological communities and habitat in the coastal areas.”51
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`Finally, the FEIS observes that “Emissions of GHGs resulting from both the production and
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`combustion of the tract coal would increase the atmosphere’s concentration of GHGs, and in
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`combination with past and future emissions from all other sources, they would contribute
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`incrementally to the global warming that produces the adverse effects of climate change
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`described previously.”52
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`Between the FEIS’ quantification of the GHGs that will be emitted and its qualitative
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`discussion of the effects of GHGs, it is clear that Plaintiffs’ claim that BLM only performed a
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`“bare arithmetic emissions calculation” of GHGs is not correct.53 BLM applied a “proxy
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`methodology:” it calculated direct and downstream greenhouse gas emissions from the proposed
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`action and then analyzed them within the context of national and global projections.54 As noted
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`previously, BLM also qualitatively discussed the environmental impacts of GHGs.
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`
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`49 Id.
`50 Id.
`51 Id.
`52 Id.
`53 Plaintiffs’ Opening Brief at 16.
`54 See AR 159821–22.
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`9
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`However, Plaintiffs are correct that BLM quantified the project’s socioeconomic benefits,
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`but did not quantify the costs of GHG emissions.”55 In the socioeconomics section, the FEIS
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`forecasts the number of jobs that will be created, the income from those jobs, the economic
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`contribution from Utah-produced coal, federal royalties, tax revenue, and downstream economic
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`benefits.56 The same section discusses possible declines in some housing values, limited effects
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`on recreation, increases in traffic and noise, night sky impacts, decreases in air quality, the
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`prospects of blasting damage, the possibility of underground coal fires, and environmental justice
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`issues.57 But nowhere are the economic costs of GHGs quantified. Plaintiffs contend that since
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`the economic benefits were quantified, BLM should have used the Social Cost of Carbon
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`(“SCC”) to forecast the economic costs, which Plaintiffs contend would have shown economic
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`damages between “$24.6 million to as much as $7 billion annually.”58
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`For its part, BLM argues that it is not required to perform a cost-benefit analysis and that
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`it did not perform one.59 It contends that some effects are more easily assessed and understood
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`quantitatively, while others are better described qualitatively.60 BLM further asserts that NEPA
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`simply does not require it to monetize all of a proposal’s effects.61 BLM also argues that is not
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`required to use the SCC, and that it adequately explained its reasons for not using it.62
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`
`
`55 Plaintiffs’ Opening Brief at 16.
`56 AR 159876–159882.
`57 AR 159882–159890.
`58 Plaintiffs’ Opening Brief at 20. Plaintiffs also argue that 40 C.F.R. § 1502.22(b)(4) requires use of the SCC in the
`FEIS because it is “generally accepted in the scientific community.” Id. at 24-25. Plaintiffs do not develop their
`argument and provide no caselaw, persuasive or otherwise, that has read that regulation to require use of the SCC.
`59 Federal Defendants’ Response at 9–10. Plaintiffs agree that a cost-benefit analysis is not required and was not
`performed. Plaintiff’s Opening Brief at 26.
`60 Federal Defendants’ Response at 10.
`61 Id.
`62 Id. at 8–9.
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`10
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`Plaintiffs rely on three district court cases in support of using the SCC to monetize GHG
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`emissions. In the first of these, defendants argued “[s]tandardized protocols designed to measure
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`factors that may contribute to climate change, and to quantify climatic impacts, are presently
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`unavailable. . . .”63 The court rejected this claim, noting that defendants in fact used the SCC in
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`its Draft Environmental Impact Statement (“DEIS”), but then removed it in the FEIS.64 The court
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`noted that the “agencies, of course, may have been able to offer non-arbitrary reasons why the
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`protocol should not have been included in the FEIS. They did not.” As a result, the court found
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`that the FEIS violated NEPA. Here, BLM did not include the SCC in its DEIS, only later to
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`exclude it. It also explained why it decided not to use the SCC.65
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`In another case, the court accepted plaintiffs’ argument that it was arbitrary and
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`capricious to quantify economic benefits without also quantifying the costs imposed by GHGs.66
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`However, the court there found that the defendants had concluded “not that the specific effects of
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`greenhouse emissions from the expansion would be too uncertain to predict, but that there would
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`in fact be no effects from those emissions, because other coal would be burned in its stead.”67
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`Here, the FEIS makes no such claim, instead calculating the direct and indirect GHGs that will
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`result from the proposal.68 Later, in a follow up case involving the same project, the court
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`63 High Country Conservation Advocs. v. United States Forest Serv., 52 F. Supp. 3d 1174, 1190 (D. Colo. 2014).
`64 Id. at 1191.
`65 Id. at 1191–92.
`66 Montana Env’t Info. Ctr. v. U.S. Off. of Surface Mining, 274 F. Supp. 3d 1074, 1098 (D. Mont. 2017), amended in
`part, adhered to in part sub nom. Montana Env't Info. Ctr. v. United States Off. of Surface Mining, 2017 WL
`5047901 (D. Mont. Nov. 3, 2017).
`67 Id. at 1098.
`68 AR 159821–22.
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`11
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`accepted the decision not to use the SCC because the agency had found it to be “too uncertain
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`and indeterminate to be useful to the analysis.”69
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`The final case cited by Plaintiffs found that because the agency “quantified the benefits of
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`the proposed action, it must also quantify the associated costs or offer non-arbitrary reasons for
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`its decisions not to.”70 The court then examined the agency’s reasons for not using the SCC and
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`found them arbitrary. Here, BLM explained its concerns with the SCC, including fundamental
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`technical issues, significant variations in results, as well as concerns that including it would be
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`unbalanced and potentially inaccurate.71 Decisions that implicate an agency’s technical or
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`scientific expertise are entitled to “especially strong” deference.72 Whether to use a particular
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`tool or methodology, like the SCC, is a decision that implicates agency expertise.73 The court
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`does not find that BLM violated NEPA by not using the SCC to calculate costs from the
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`project’s GHGs.74
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`However, the FEIS’ treatment of GHGs and their costs is still problematic. The
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`“Greenhouse Gases” subsection calculates the volume of projected GHGs from the proposal and
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`contextualizes it in terms of total global emissions, but it says nothing about the environmental
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`effects and socioeconomic costs of GHGs.75 The “Climate Change” subsection, which appears
`
`
`69 Montana v. Bernhardt, 443 F. Supp. 3d 1185, 1196 (D. Mont. 2020).
`70 WildEarth Guardians v. Zinke, 2019 WL 2404860, at *11 (D. Mont. Feb. 11, 2019), report and recommendation
`adopted sub nom. WildEarth Guardians v. Bernhardt, 2021 WL 363955 (D. Mont. Feb. 3, 2021).
`71 AR 160371–37.
`72 Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006).
`73 See Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 785 (10th Cir. 2006)
`74 See EarthReports, Inc. v. Fed. Energy Regulatory Comm'n, 828 F.3d 949, 956 (D.C. Cir. 2016); WildEarth
`Guardians v. Zinke, 368 F. Supp. 3d 41, 78–79 (D.D.C. 2019); Wilderness Workshop v. Bureau of Land Mgmt., 342
`F. Supp. 3d 1145, 1159–60 (D. Colo. 2018); W. Org. of Res. Councils v. Bureau of Land Mgmt., CV 16-21-GF-
`BMM, 2018 WL 1475470, at *14 (D. Mont. Mar. 26, 2018).
`75 AR 159821–22.
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`12
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`nearly 250 pages after the “Greenhouse Gases” subsection, qualitatively discusses the effects of
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`GHGs on the climate generally, but does not include or even reference the quantities of GHGs
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`the project will generate.76 Finally, the “Socioeconomics” section, which contains the income,
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`taxes, royalties, and related economic data to which Plaintiffs refer, says nothing about the
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`socioeconomic costs of GHGs—qualitatively or otherwise—even though the “Greenhouse
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`Gases” subsection, which appears 200 pages later, acknowledges that the “socioeconomic costs”
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`and “socioeconomic impacts” from climate change are many.77 These three sections, which
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`should be working together to paint a clear picture for decisionmakers and the public78 of the
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`impacts of the GHGs that will result from the project, instead end up being ships passing in the
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`night.
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`This is not mere flyspecking. NEPA has two aims: “it places upon an agency the
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`obligation to consider every significant aspect of the environmental impact of a proposed action”
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`and “it ensures that the agency will inform the public that it has indeed considered environmental
`
`concerns in its decisionmaking process.”79 It is one thing for BLM to find that, as a matter of
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`agency expertise, it should not use a particular tool to monetize the impacts from GHGs and
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`climate change. But it is unacceptable for the information and analysis that is included on the
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`topic to be spread out and disjointed in such a way that the public is unlikely to find the related
`
`pieces and put them together or to have confidence that the agency considered the interrelated
`
`qualitative and quantitative information as a whole. It is in the analysis of the GHGs from the
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`proposed action with the climate change effects that the agency shows that it has taken a hard
`
`
`
`76 AR 160065–67.
`77 AR 159875–159901.
`78 See Citizens’ Comm. to Save Our Canyons, 513 F.3d at 1178.
`79 Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1236–37 (10th Cir. 2011) (citation and internal quotation marks
`omitted).
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`13
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`look at the indirect effects of the project. This is particularly true on this record, where there are
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`multiple pages laying out the significant economic benefits in the “Socioeconomics” subsection,
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`but no discussion there at all about the socioeconomic costs from GHGs and climate change. The
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`socioeconomics section may not lay out the economic benefits from the proposal without
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`analyzing the socioeconomic costs of GHGs together with climate change.
`
`
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`The agency is owed some deference on the tools it uses. And the court will not adopt a
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`categorical test that if economic benefits are quantified then economic costs always must be too,
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`because, among other things, some costs may not accurately be reduced to numbers. However,
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`agencies must present their relevant quantitative and qualitative information and analyses in a
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`way that the court and the public can be confident that the agency has taken the requisite “hard
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`look.”
`
`
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`B. BLM Failed to Take a Sufficiently Hard Look at the Cumulative Impact of GHG
`Emissions.
`
`Plaintiffs also challenge the BLM’s analysis of the cumulative impact of the GHG
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`emissions from the expanded Alton Mine.80 Plaintiffs fault BLM for failing to analyze the
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`cumulative impacts of all Department of Interior coal mining projects under review and limiting
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`its review to climate impact sources in two counties.81 Plaintiffs contend that the size of the
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`Cumulative Impacts Assessment AREA (CIAA) was too limited and that the proposed action’s
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`“downstream GHG emissions should have been considered together with other contemporaneous
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`80 Plaintiffs’ Opening Brief at 28–32.
`81 Id.
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`federal coal mine approvals.”82 Plaintiffs urge the court to follow two recent district court
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`decisions imposing this requirement.83
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`For its part, BLM notes that the cases Plaintiffs cite are non-binding. BLM argues that the
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`needed impacts analysis and information are present and contends that 40 C.F.R. § 1508.7 and
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`40 C.F.R. § 1508.25 indicate no such “all federal” or “all DOI or BLM” mine approvals
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`approach is required or permitted.84
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`The applicable regulation defines cumulative impact as “the impact on the environment
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`which results from the incremental impact of the action when added to other past, present, and
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`reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or
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`person undertakes such other actions.”85 The plain language of the regulation does not permit the
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`agency to limit its analysis to federal sources. But the question is not whether the considered
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`actions involve the federal government generally or the Department of Interior or BLM
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`specifically, but rather whether all “the past, present, and reasonably foreseeable future actions”
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`are sufficiently addressed.
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`Reviewing the sufficiency of a cumulative-impacts analysis, the court “must examine the
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`administrative record, as a whole, to determine whether the [agency] made a reasonable, good
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`faith, objective presentation of those impacts sufficient to foster public participation and
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`informed decision making.”86 “A meaningful cumulative impact analysis” must address:
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`82 Plaintiffs’ Opening Brief at 30.
`83 See WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 77 (D.D.C. 2019); Indigenous Envtl. Network v. U.S.
`Dep’t of State, 347 F. Supp. 3d 561 (D. Mont. 2018), order amended and supplemented, 369 F. Supp. 3d 1045 (D.
`Mont. 2018), and appeal dismissed and remanded sub nom. Indigenous Envtl. Network v. U.S. Dep't of State, No.
`18-36068, 2019 WL 2542756 (9th Cir. June 6, 2019).
`84 Federal Defendants’ Response at 14–18.
`85 40 C.F.R. § 1508.7.
`86 Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1251–52 (10th Cir. 2011) (citation and internal quotation marks
`omitted).
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`(1) the area in which the effects of the proposed project will be felt; (2) the
`impacts that are expected in that area from the proposed project; (3) other
`actions—past, present, and proposed, and reasonably foreseeable—that have had
`or are expected to have impacts in the same area; (4) the impacts or expected
`impacts from these other actions; and (5) the overall impact that can be expected
`if the individual impacts are allowed to accumulate.87
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`Here, the cumulative impacts section in the FEIS accomplishes much of this, but still falls
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`short. The FEIS takes two different approaches in its cumulative impacts section: one that
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`applies to GHGs and one that applies to all other impacts. First, the FEIS discusses GHGs and
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`climate change generally. As noted earlier, this includes statements that “GHG emissions, which
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`contribute to climate changes, do not remain localized but become mixed with the general
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`composition of the earth’s atmosphere.”88 The FEIS notes that most of the “CO2 [is] coming
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`from the combustion of fossils.”89 The FEIS lists numerous global environmental impacts90 and
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`national impacts as well.91 The FEIS then states that regionally “natural variability in climate
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`parameters . . . .makes it difficult to attribute particular environmental impacts to climate
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`change.”92 But the cumulative impacts section provides no data or substantive discussion about
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`GHGs from other present “and reasonably foreseeable future actions.” And while GHG data
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`from the Alton mine project is calculated elsewhere,93 it is never discussed or even referenced in
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`the cumulative impacts analysis.94
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`87 San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1056 (10th Cir. 2011) (quoting TOMAC, Taxpayers of Michigan
`Against Casinos v. Norton, 433 F.3d 852, 864 (D.C. Cir. 2006)).
`88 AR 160064.
`89 AR 160066.
`90 Id.
`91 Id.
`92 Id.
`93 AR 159822–23.
`94 AR 160064–67.
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`Second, the cumulative impacts section also defines a CIAA for purposes of discussing
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`cumulative impacts. The FEIS defines the CIAA as “the BLM-KFO, approximately 2.85 million
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`acres of lands in Kane and Garfield counties, and the reasonably foreseeable coal haul
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`transportation route (Map 4.6).”95 The FEIS explains that the CIAA is a reasonable area of
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`analysis because “there is a reasonable degree of data available” for it, it is large enough to take
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`into account certain far-reaching impacts, and “it is small enough that analyses do not become
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`unreasonably cumbersome to complete with an acceptable degree of accuracy and precision.”96
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`The FEIS then inventories reasonably foreseeable actions and developments in the CIAA for the
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`next twenty years; identifies likely coal, oil, and gas development in the CIAA; and discusses
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`cumulative impacts involving sound, views, pollution, cultural resources, fire management, land
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`use, livestock, paleontology, recreation, vegetation, water resources, and wildlife.97 While
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`present and “reasonably foreseeable future” fossil fuel developments in the CIAA are identified,
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`no quantitative or qualitive discussion is provided for the CIAA regarding GHG emissions,
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`though data regarding other emissions are provided.98
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`In short, while the cumulative impacts section accomplished much of its NEPA-required
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`mandate, on GHGs it failed to meaningfully describe and discuss relevant information regarding
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`other present and reasonably foreseeable future GHG sources. While NEPA “does not require the
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`impossible,”99 the cumulative