In Brief: High Country Conservation Advocates v. U.S. Forest Service

Nathalie Prescott - US Forest Service

In Brief: High Country Conservation Advocates v. U.S. Forest Service

by Nathalie Prescott, Staff Contributor

The Sunset Roadless Area in western Colorado contains 5,800 acres of relatively undeveloped forest and scrub land. Arch Coal leases land in this area for its coal mine operations, and petitioned the BLM and Forest Service for a Lease Modification which would add new lands to the preexisting leases in order to expand their underground mine. This Lease Modification was granted by the agencies after finalizing an Environmental Impact Assessment for National Environmental Policy Act (NEPA) purposes. In High Country Conservation Advocates v. United States Forest Service [1], the court questioned the basis for that agency decision.

Several prominent environmental groups represent the plaintiffs, including Sierra Club, High Country Conservation Advocates, and WildEarth Guardians. They brought suit against the agencies alleging several deficiencies in the Final EIS, and Arch Coal intervened. District Court Judge R. Brooke Jackson held that the Final EIS inadequately disclosed the effects of greenhouse gas emissions and, based on that assessment, asked the parties to either confer to come up with a remedy together, or to submit individual briefs about it.

“…there might be impacts from methane released from mine operations…”

The agencies were aware that they are required to analyze Greenhouse Gas (GHG) emissions under the Lease Modification, and they further knew that there might be impacts from methane released from mine operations and CO2 from coal combustion. Even more, they acknowledged that these emissions may affect climate change. Instead of discussing the actual likely impacts, however, they gave a categorical explanation for why analyzing these impacts was impossible.

The court found that in direct contrast to the agencies’ assertion, there actually is a tool that was developed precisely for that kind of analysis. This tool is the Social Cost of Carbon for Regulatory Impact Analysis (http://www.epa.gov/oms/climate/regulations/scc-tsd.pdf), and was designed by multiple agencies, including agencies from both economic and environmental vantage points. The protocol assists agencies with the cost-benefit analysis required (to the extent permitted by law) by Executive Order 12866.

Interestingly enough, the agencies did initially analyze the indirect effects of GHG emissions in the draft EIS, using precisely that protocol. This prior draft weighed several economic benefits against two costs – the cost of disturbing forest and the cost of the mine’s methane emissions. It seems the reason the analysis did not show up in the final draft was because of an email from a BLM economist who asserted that quantifying GHG costs is still controversial. Importantly for the court, the Final EIS still quantified benefits of the Lease Modification, and even added some more.

“…disregard[ing] GHG costs, was enough to label the action arbitrary and capricious.”

Though the court said that NEPA does not require cost-benefit analysis, the fact that the agencies retained the quantification of benefits and disregarded GHG costs (essentially putting a 0 on something it previously acknowledged had quantifiable costs) was enough to label the action arbitrary and capricious. By including the analysis in the prior EIS and then taking it out without a good explanation for why, the agencies seem to have shot themselves in the foot.

Although the ruling will likely have a low impact on coal mining in the area (Arch Coal still retains its initial leases, even without the Lease Modifications), the result shows a trend towards taking GHG pollution into account. It remains unclear whether or not the Lease Modifications would have been granted with the quantified effects of GHGs, but at the very least, a more accurate picture of the impacts is required.

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[1] High Country Conservation Advocates v. U.S. Forest Service, 2014 WL 2922751 (D. Colo. June 27, 2014)

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