Energy and Environment Monitor

Enviros Push for NEPA Review of Climate Impact of Powder River Basin Mining

Environmentalists are launching a new strategy to potentially limit the mining of coal in the Powder River Basin. According to a recent article titled Activists Target Coal Burning Projects Through NEPA GHG Mine Reviews, published in http://carboncontrolnews.com/, the strategy involves seeking consideration of greenhouse gas (GHG) impacts from coal combustion as part of National Environmental Policy Act (NEPA) reviews for mines in the Powder River Basin. According to the article, Environmentalists at a March 9, 2010 meeting with White House Council on Environmental Quality (CEQ) argued that Federal land management agencies should have to consider the climate impacts of burning coal as part of ongoing NEPA reviews for one dozen proposed coal mine expansions in Wyoming.  

Currently, NEPA requires federal agencies to review the environmental impacts of their decisions and issue either an environmental assessment or a more comprehensive environmental impact statement (such as the one performed on the Spruce mine of West Virginia). Agencies must also consider measures to mitigate the environmental impacts of a project, including less-harmful alternatives. Under current regulations, coal largely escapes NEPA scrutiny at power plants because most coal-fired power plants are not built on federal land and are permitted by states. Due to this lack of a federal role (or oversight) in the process, NEPA is rarely triggered for such facilities.  

Environmentalists, however, are pushing to have coal combustion GHG emissions considered in coal mine leasing EIS reviews by the Bureau of Land Management (BLM). According to the environmentalists, the Federal land managers who approve these leases should consider the emissions because a 2009 executive order from the Obama administration (which calls on agencies to reduce the direct and indirect GHG emissions from their activities) mandates the consideration of emissions resulting from mined coal to be considered an “indirect” climate impact of coal mines under NEPA. 

The 2009 order preceded CEQ’s announcement that it would be developing specific guidance for GHG’s under NEPA. CEQ is currently taking comments on the proposed guidance until May 24, 2010. The proposed guidance says CEQ is seeking comment on “the appropriate means of assessing the GHG emissions and sequestration that are affected by Federal Land and resource management decisions.” According to the article in Carbon Control News, CEQ has recently said its guidance would not apply GHG considerations to land use projects, and notes that “[l]and management techniques, including changes in land use or land management strategies, lack any established federal protocol for assessing their effect on atmospheric carbon release and sequestration at a landscape scale.” As previously stated, the comment period is open until May 24, 2010, giving both sides sufficient time to express their opinion on the subject.  

This article was authored by Matthew S. Tyree, Jackson Kelly PLLC. For more information on the author see here.

Court Rejects Rule Prohibiting Roads in Designated Areas

    The United States District Court (D. Wy.) recently addressed (Wyoming v. US Department of Agriculture 07CV17B) the State of Wyoming's challenge to the adoption of the Roadless Area Conservation Final Rule ("Roadless Rule"), 66 Fed. Reg. 3244-3272 (Jan. 12, 2001), which was promulgated by the United States Department of Agriculture and the United States Forest Service. The Roadless Rule prohibits road construction, road reconstruction, and timber harvesting in inventoried roadless areas, and is applicable on a nationwide basis. The Roadless Rule affects 58.5 million acres, which is approximately 31 percent of National Forest System lands.

    The Court found that the Roadless Rule was promulgated in violation of the National Environmental Policy Act and the Wilderness Act, which required that it be set aside. The Court noted that the Wilderness Act's purpose is to prescribe the procedure for designation of wilderness areas and to divest that authority from the Department of Agriculture. The Court found the designation of 58.5 million acres as "roadless areas" to be a "thinly veiled attempt to designate 'wilderness areas' in violation of the clear and unambiguous process established by the Wilderness Act for such designation." The Order Granting Plaintiff's Motion for Declaratory Judgment and Injunctive Relief is attached.

    This article was authored by Ronda L. Sandquist, Jackson Kelly PLLC. For more information on the author see here.

Download Nov Blog. Wyoming v US Dept of Agriculture 07CV17B (D0526952)

Court Rejects Rule Prohibiting Roads in Designated Areas

     The United States District Court (D. Wy.) recently addressed (Wyoming v US Department of Agriculture 07CV17B) the State of Wyoming's challenge to the adoption of the Roadless Area Conservation Final Rule ("Roadless Rule"), 66 Fed. Reg. 3244-3272 (Jan. 12, 2001), which was promulgated by the United States Department of Agriculture and the United States Forest Service.  The Roadless Rule prohibits road construction, road reconstruction, and timber harvesting in inventoried roadless areas, and is applicable on a nationwide basis.  The Roadless Rule affects 58.5 million acres, which is approximately 31 percent of National Forest System lands.

     The Court found that the Roadless Rule was promulgated in violation of the National Environmental Policy Act and the Wilderness Act, which required that it be set aside.  The Court noted that the Wilderness Act's purpose is to prescribe the procedure for designation of wilderness areas and to divest that authority from the Department of Agriculture.  The Court found the designation of 58.5 million acres as "roadless areas" to be a "thinly veiled attempt to designate' wilderness areas' in violation of the clear and unambiguous process established by the Wilderness Act for such designation."  The Order Granting Plaintiff's Motion for Declaratory Judgment and Injunctive Relief is attached.

     This article was authored by Kristi J. Livedalen, Jackson Kelly PLLC. For more information on the author see here.