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Western Organization of Resource Councils and Friends of Earth v. Zinke

United States Court of Appeals, District of Columbia Circuit

June 19, 2018

Western Organization of Resource Councils and Friends of the Earth, Appellants
v.
Ryan Zinke, In his capacity as Secretary of the Interior, et al., Appellees

          Argued March 23, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-01993)

          Eric 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.

          James 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.

          James 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.

         The 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 in 1985.

         In 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 this court.

         Appellants 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.

         The 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 affirmed.

         I. Background

         A. Statutory and Regulatory Background

         1. The National Environmental Policy Act

         NEPA 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).

         The 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 case.

         First, 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 91.

         Second, 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).

         Thus, 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. § 1502.9(c)(1)(ii).

         2. The Federal Coal Management Program

         The 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.

         To 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.

         In 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, J.A. 505.

         In July 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 Program.

         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. § 3420.3-4).

          In 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 ...


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