By Ucilia Wang
A U.S. District Court judge in Colorado will review arguments in a case that seeks to stop a coal company from increasing production and forces the federal government to include more climate impact analysis in its environmental reports.
The lawsuit was filed by High Country Conservation Advocates, the Center for Biological Diversity and the Sierra Club last December, soon after the U.S. Forest Service and the Bureau of Land Management (BLM) approved a request from Arch Coal to modify two leases for the West Elk Mine on the western slope of the Colorado Rockies. The expansion requires building roads and drilling pads within a designated roadless area of the Gunnison National Forest, which the plaintiffs argue brings environmental harm along with adverse climate impacts. Briefs will be filed to the judge over the next month.
The lawsuit is one of several recent cases that challenge the federal government’s climate impact analyses of coal leases. In a ruling earlier this week, a district court judge in Montana ordered the BLM to improve its analysis of climate impacts and use “high quality information” and “accurate scientific analysis” in its current plans to open up 15 million acres in the Powder River Basin straddling Wyoming and Montana to oil and gas production and coal mining.
But the judge rejected other claims brought by Western Organization of Resource Councils and others in 2016, concluding that the BLM isn’t required to do “a cost-benefit analysis of potential climate change impacts outside the geographic reach of the” management plans.
The Powder River Basin, one of the largest coal-producing regions in the country, has been the focus of other climate legal challenges. The 10th Circuit Court of Appeals in Denver reversed a U.S. district court decision last September and required the BLM to redo its environmental analyses of four coal leases in the Powder River Basin. The court didn’t invalidate the leases.
The plaintiffs in that case, Sierra Club and WildEarth Guardians, argued that BLM didn’t fully account for the carbon emissions that could be produced by the coal projects in Wyoming.
The Colorado case challenges a government agreement that allows Arch to access 10.1 million tons of coal under 1,700 acres and an additional 7.5 million tons from private lands and existing federal leases, the complaint noted. Arch sold 4.9 million tons of coal from West Elk in 2017. The mine covers roughly 19,500 acres, according to Arch’s 2017 annual report.
The plaintiffs claim the federal agencies exaggerated the economic benefit of the project and failed to consider an effective way to reduce the climate impact of this methane-heavy mine: flaring—or burning off—methane from the underground mine.
The government allows Arch to release methane into the atmosphere. West Elk was the largest source of methane emissions in Colorado from 2011-16, the lawsuit said.
Methane is harmful to public health when released into the atmosphere and it is a heat-trapping gas that is 86 times more potent than carbon dioxide over a 20-year period. Methane heats the atmosphere more quickly than CO2, making it a major accelerator of global warming. It is estimated that about 40 percent of man-made emissions of methane in the U.S. come from natural gas, coal and oil production.
Burning methane isn’t an environmentally friendly approach either, because it then becomes carbon dioxide. Nonetheless, some environmentalists argue that flaring methane is far better than releasing it.
“When you have a high concentration of methane coming out of underground coal mines and you have proven technology that’s cost effective and protects the climate, government should require companies to use that as a condition of using public resources,” said Nathaniel Shoaff, senior attorney with the Sierra Club. “We are not asking for a unicorn.”
Conservation groups have been pushing government agencies and coal companies to limit methane emissions for many years. Their efforts could intensify given the current administration’s goal to roll back regulations of greenhouse gas emissions, said Sam Kalen, professor at the University of Wyoming College of Law and who served in the Interior Department during the Clinton administration.
Legal fights are also ongoing over methane pollution in oil fields. Burning off methane is already a common practice in crude oil production. The disputes center instead on whether oil companies should capture the gas and try to make money from it.
The lawsuit in Colorado is the latest challenge to federal efforts that began in 2009 to expand mining in West Elk. Previous approvals of lease modifications for Arch ended with a 2014 federal court decision that required the government to redo the environmental impact report.
The court said then that the report didn’t adequately disclose the impact of the West Elk Mine on greenhouse gas emissions. High Country Conservation Advocates, WildEarth Guardians and the Sierra Club filed the earlier lawsuit as well.
The Forest Service said in its latest environmental assessment that it had addressed the problems identified by the court in 2014.
The federal agencies named in the latest lawsuit declined to comment about the litigation. Arch didn’t respond to requests for comment.
The court will again decide whether the government complied with the National Environmental Policy Act by fully analyzing the potential problems and solutions, not whether it should have required Arch to burn off methane as a way to reduce emissions, said Patrick McGinley, a professor at the West Virginia University School of Law. The government can argue that it had fully considered the climate impact this time and didn’t find methane flaring a good alternative.
Legal experts say the government and Arch have a strong economic interest to avoid repeated legal challenges over the project. A delay or uncertainty can make it difficult for coal companies to borrow money for equipment or cause it to cancel the project, McGinley said.
“It’s in the best interest of the government and the company to have it done right the first time,” he said.
The conservation groups are asking the court to expedite the case before construction work takes place this year. The court denied their request for a temporary restraining order to stop work in December.
Other lawsuits currently being pursued are taking a different approach at the issue, targeting the BLM’s overall approach to analyzing climate impacts for its coal leasing program. One case is challenging Interior Secretary Ryan Zinke’s reversal of a decision by his predecessor Sally Jewell, who ordered BLM in 2015 to stop issuing new leases while it developed requirements that would strengthen its climate impact assessments.