United States Court of Appeals, District of Columbia Circuit
Western Organization of Resource Councils and Friends of the Earth, Appellants
Ryan Zinke, In his capacity as Secretary of the Interior, et al., Appellees
March 23, 2018
from the United States District Court for the District of
Columbia (No. 1:14-cv-01993)
F. Citron argued the cause for appellants. With him on the
briefs were Thomas C. Goldstein and Richard E. Ayres. Sarah
E. Harrington entered an appearance.
Michael T. Gray, Attorney, U.S. Department of Justice, argued
the cause for appellees. With him on the brief were Jeffrey
H. Wood, Acting Assistant Attorney General, and Eric Grant,
Deputy Assistant Attorney General.
Kaste, Deputy Attorney General, Office of the Attorney
General for the State of Wyoming, Erik E. Petersen,
Supervisory Attorney General, and Michael M. Robinson, Senior
Assistant Attorney General, were on the joint brief of
intervenors the State of Wyoming, et al. in support of
appellees. Margaret I. Olson, Assistant Attorney General,
Office of the Attorney General for the State of North Dakota,
and Andrew C. Emrich entered appearances.
M. Auslander and Peter J. Schaumberg were on the brief for
amicus curiae National Mining Association in support of
defendants-appellees and intervenors-appellees for affirmance
of the District Court.
Before: Henderson and Srinivasan, Circuit Judges, and
Edwards, Senior Circuit Judge.
EDWARDS, SENIOR CIRCUIT JUDGE.
Mineral Leasing Act, 30 U.S.C. § 181 et seq.
(2012), and the Federal Land Policy and Management Act of
1976, 43 U.S.C. § 1701 et seq., authorize the
Secretary of the Department of the Interior
("Secretary" or "Department") to lease
rights to mine coal on public lands. In 1979, acting through
the Bureau of Land Management ("BLM"), the
Secretary published a programmatic environmental impact
statement ("PEIS") for a Federal Coal Management
Program ("Program"). The PEIS was issued pursuant
to the requirements of the National Environmental Policy Act
("NEPA"), 42 U.S.C. § 4332(2)(C), and it
reflected the Secretary's proposed approach for
exercising his statutory authority. In July of that year, the
Department issued a Record of Decision adopting the Program.
BLM then promulgated regulations establishing the
Program's procedures. It amended those regulations in
1982, and last issued a supplement to the Program's PEIS
2014, Appellants Western Organization of Resource Councils
and Friends of the Earth brought suit in the District Court,
seeking an order compelling the Secretary to update the
Program's environmental impact statement. The District
Court granted the Secretary's motion to dismiss. In so
doing the court held that the Secretary had "no duty to
supplement the 1979 programmatic EIS for the federal coal
management program because there is no remaining or ongoing
major federal action that confers upon them a duty to do
so." W. Org. of Res. Councils v. Jewell, 124
F.Supp.3d 7, 13 (D.D.C. 2015). Appellants timely appealed to
claim that the Secretary's failure to supplement the
Program's PEIS violates both NEPA and the Administrative
Procedure Act ("APA"). Appellants note that when
the Department issued amended regulations in 1982, "it
reaffirmed that it retained an obligation under NEPA to
revise or update the 1979 Program EIS when its assumptions,
analyses and conclusions [were] no longer valid."
Appellants' Br. 2. Appellants point out that, since 1979,
"tens of thousands of peer-reviewed scientific studies
have identified the causes and consequences of continued
atmospheric warming and showed that coal combustion is the
single greatest contributor to the growing concentration of
greenhouse gases in the atmosphere." Id. at 3.
Given that these studies were not available when the
Secretary issued the 1979 PEIS or the 1985 supplement,
Appellants contend that the Secretary is required to
supplement its programmatic environmental analysis.
federal action establishing the Federal Coal Management
Program was completed in 1979. And the Secretary has not
proposed to take any new action respecting the Program. In
these circumstances, neither NEPA nor the APA requires the
Secretary to update the PEIS for the Federal Coal Management
Program. We therefore lack authority to compel the Secretary
to do so. Accordingly, the judgment of the District Court is
Statutory and Regulatory Background
The National Environmental Policy Act
requires all federal agencies to prepare and include an
environmental impact statement ("EIS") in
"every recommendation or report on proposals for . . .
major Federal actions significantly affecting the quality of
the human environment." 42 U.S.C. § 4332(2)(C). As
part of this process, agencies must "take a 'hard
look' at their proposed actions' environmental
consequences in advance of deciding whether and how to
proceed." Sierra Club v. U.S. Army Corps of
Eng'rs, 803 F.3d 31, 37 (D.C. Cir. 2015). This
ensures that agencies "consider every significant aspect
of the environmental impact of a proposed action, " and
"inform the public" of their analysis. Balt.
Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462
U.S. 87, 97 (1983).
Council on Environmental Quality ("CEQ"),
established by NEPA, has authority to interpret the statute
and has promulgated regulations to guide federal agencies in
complying with its mandate. Dep't of Transp. v. Pub.
Citizen, 541 U.S. 752, 757 (2004). The CEQ regulations
articulate two principles that govern the dispute in this
the regulations require an environmental analysis to account
for the cumulative impacts of an action "when added to
other past, present, and reasonably foreseeable future
actions." 40 C.F.R. § 1508.7 (2017); see also
id. § 1508.25(a)(2). One way agencies can satisfy
this requirement is by "tiering" their analyses.
Tiering allows an agency to meet its NEPA obligations in
steps: First, the agency publishes a PEIS assessing the
entire scope of a coordinated federal program. See Nevada
v. Dep't of Energy, 457 F.3d 78, 91 (D.C. Cir.
2006). The PEIS ensures that the agency assesses "the
broad environmental consequences attendant upon a
wide-ranging federal program." Id. at 92. The
agency later supplements that programmatic analysis with
narrower EISs analyzing the incremental impacts of each
specific action taken as part of a program. Id. at
the CEQ regulations specify when agencies must update their
environmental analyses in response to changed conditions.
Specifically, agencies must prepare a supplemental impact
statement when there exist "significant new
circumstances or information relevant to environmental
concerns and bearing on the proposed action or its
impacts." 40 C.F.R. § 1502.9(c)(1)(ii) (2017).
to meet its NEPA obligations, an agency must consider the
cumulative impacts of a proposed action, see id.
§ 1508.25(a), and generally cannot rely on an outdated
analysis to support its actions, see id. §
The Federal Coal Management Program
Mineral Leasing Act empowers the Department to lease rights
to coal on public lands. 30 U.S.C. § 181 et
seq. Prior to 1973, the Department exercised this power
in a "reactive" manner, processing lease
applications on a "case-by- case basis." Dep't
of the Interior, BLM, Final Envtl. Statement, Fed. Coal Mgmt.
Program, 1-9 (1979), [hereinafter "PEIS"],
reprinted at J.A. 113, 142. The agency gave
"little consideration" to "total coal reserves
under lease or to the need for additional leasing, and
environmental impacts . . . were not addressed."
Id. But in the 1970s, the Secretary of the Interior
decided that the better course would be to develop a
comprehensive planning system for future coal leasing.
See id. at 1-9-1-10, J.A. 142-43.
achieve this goal, the Secretary undertook a number of
administrative actions that eventually resulted in adoption
of a Federal Coal Management Program. Initially, the
Department commenced notice and comment rule making on
"the procedures that the Secretary of the Interior will
use to carry out his authority to manage Federal coal."
Proposed Rulemaking, Coal Mgmt., 44 Fed. Reg. 16, 800, 16,
800 (March 19, 1979). The Secretary's "preferred
program" allocated land for leasing based on analysis of
national and regional coal demand. See PEIS at
3-2-3-3, J.A. 262-63. It included a planning system to decide
which areas would be listed for coal production, a system for
evaluating the national demand for coal, and procedures for
conducting sales, issuing and enforcing leases, and complying
with the agency's NEPA duties. See id.
1979, the agency issued a PEIS to support its proposal.
See PEIS, J.A. 113. The PEIS analyzed the
Secretary's preferred program, as well as several
alternatives for a federal coal management plan. These
included no new federal leasing; state determination of
leasing levels; and emergency leasing only, among others.
See id. at v, J.A. 120. The PEIS considered the
physical, ecological, socioeconomic, transportation, and
energy impacts of the various alternatives. As part of this
analysis, the agency acknowledged that emissions resulting
from coal mining and combustion could lead to increased
atmospheric carbon dioxide, and explained that "there
are indications that the rising CO2 levels in the atmosphere
could pose a serious problem, commonly referred to as the
greenhouse effect." Id. at 5-88, J.A. 486. It
addressed carbon dioxide as a "potential pollutant,
" id., and predicted increased levels of
emissions from coal production under the proposed
alternatives, id. at 5-107, J.A. 505. The agency
ultimately stated that "there are uncertainties about
the carbon cycle, the net sources of carbon dioxide in the
atmosphere, and the net effects of carbon dioxide on
temperature and climate, " id. at 5-88, J.A.
486, and called for further study of the "impacts of
increased coal utilization, " id. at 5-107,
1979, the Department officially adopted the Federal Coal
Management Program. It published a two-part document
approving the Secretary's preferred program and
discussing its rationale. See Department of the
Interior, Secretarial Issue Document, Fed. Coal Mgmt. Program
[hereinafter "ROD"], reprinted at J.A.
1391. This document served as the Record of Decision for the
Secretary additionally promulgated a final rule setting forth
the Program procedures. Coal Mgmt.; Federally Owned Coal, 44
Fed. Reg. 42, 584 (July 19, 1979). The 1979 rule detailed the
steps that BLM would take to implement the Program, and it
also set forth the circumstances in which the PEIS was to be
updated. Id. at 42, 616-20. The rule specified that
the Department would supplement its environmental analysis if
the Secretary determined that regional production goals and
leasing targets "vary significantly from those analyzed,
" or that the available tracts may "generate
significantly different levels or types of environmental
impacts than were anticipated" in the most current PEIS.
Id. (previously codified at 43 C.F.R. §
1982, the Secretary issued another rule purporting to
"eliminate burdensome, outdated . . . provisions of the
existing coal management regulations." Amendments to
Coal Mgmt. Program Regulations, 47 Fed. Reg. 33, 114, 33, 114
(July 30, 1982). Because the rule redefined the goal for how
leasing targets should be set, a number of commenters argued
that the proposed rule constituted a "new program"
and thus required its own EIS. See id. The Secretary
responded that an ...