The U.S. government is being challenged in court for not considering climate change in its coal leasing programA lawsuit alleges the federal coal leasing program does not do enough to consider the climate implications. Photo credit: George Frey/Getty Images

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By Ucilia Wang

A federal appellate court will decide the fate of a lawsuit challenging how the Department of Interior analyzes the environmental impact of proposals to lease public land for coal mining.

The lawsuit contends that the U.S. government failed to update its environmental review process to take into account how coal mining contributes to climate change and threatens public health. A lower court dismissed the suit in 2015, and the plaintiffs filed an appeal. The D.C. Circuit Court of Appeals said last week it would hear the appeal on March 23.

The two plaintiff organizations, the Western Organization of Resources Council and Friends of the Earth, first sued the Interior Department, then-Interior Secretary Sally Jewell and the Bureau of Land Management (BLM) in 2014. Even though the case was initially dismissed, Jewell later ordered the BLM to stop issuing new leases while it worked on new environmental review requirements that would consider their impact on climate change.

Ryan Zinke reversed Jewell’s decision after he became Interior secretary last year, a move that legal experts say adds a new dimension to the case. The lawsuit previously hinged primarily on the Interior department’s promise to update the scope of the coal program’s environmental assessment,  which  was first put in place in 1979.

“The fact that there was this back and forth between Jewell and Zinke adds some color to the case and made it more interesting to the court,” said John Leshy, a law professor at the University of California, Hastings College of Law. “The plaintiffs have a decent argument that the last time the government took a systematic look at the coal policy was 40 years ago. It’s time for another look.”

The plaintiffs cited a 1989 Supreme Court decision in Marsh v. Oregon Natural Resources Council. The court said a federal agency should update its environmental review process when significant new data emerges.

“We are very optimistic that we have a good theory,” said Richard Ayres, an attorney for the plaintiffs. “The lower court simply didn’t look at the case law. If it had, it would have found the other way. We are expecting to do well in the appeal.”

The Interior Department referred questions to the Department of Justice, which didn’t respond to requests for comments.

In its court filings, the government said while the plaintiffs highlighted improvements in climate science, it didn’t demonstrate specific impacts stemming  from BLM’s environmental reviews.

The lower court agreed in 2015, saying BLM should reconsider its environmental review method while it’s reviewing an application and needs to consider new information. The fact that the government will continue to review and issue coal leases, however, isn’t considered what the lower court dubbed a “major ongoing federal action” that warrants a change in how it determines environmental impact.

“It all turns on what is a challengeable action. If the court says the plaintiffs have identified an action, then the plaintiffs will win,” said William Snape, a professor at the American University Washington College of Law.

“It’s astounding that we don’t have any accounting of this coal leasing program. The massive price that the public pays for coal leases—financially, ecologically and recreationally—is huge and has been understated,” said Snape, who is also a counsel with the Center for Biological Diversity, an environmental advocacy group.

Actions that the appellate court could take include siding with the plaintiffs and sending the case back to the lower court for trial, upholding the dismissal, or telling the plaintiffs to launch new legal challenges about specific leases rather than the entire program, Leshy said.

“It’s harder to challenge the government when it says we will do nothing than when it says we will do X or Y, ” Leshy added. “The plaintiffs have a higher burden in challenging the government’s inaction.”

The appellate court is expected to issue its decision this summer, Ayres said.