During a March 23 hearing for a lawsuit brought by environmental groups, federal judges challenged the U.S. Department of the Interior's failure to consider how the federal coal leasing program could cumulatively affect climate.
"You're not going to look at the larger concerns, climate change, that [environmental groups] are talking about and you're not disagreeing with them that there have been major climate changes," Judge Harry Edwards said to Michael Gray, the attorney representing the DOI in a hearing in the U.S. Court of Appeals for the District of Columbia Circuit. "So you're saying the government's position is there is no obligation to revise or update a [programmatic environmental impact statement] when everyone can see that the underlying assumptions are wrong?"
The case pits the Western Organization of Resource Councils and Friends of the Earth against the DOI over the ongoing management of the federal coal leasing program and is one of several recent lawsuits in which environmental groups are looking to force the Trump administration to consider climate change in its decisions. A federal court decided in August 2017 that the U.S. Office of Surface Mining Reclamation and Enforcement did not adequately analyze impacts including climate effects for a planned expansion of a Signal Peak Energy LLC coal mine in Montana, while an appeals court ordered the U.S. Bureau of Land Management in September 2017 to revise its environmental impact statements and the resulting decisions it made in approving coal leases adjacent to major Powder River Basin mines.
In this case, the environmental groups initially filed a lawsuit against the DOI in 2014 to push it to consider climate change when evaluating proposed coal leases and revived the suit in May 2017 after Interior Secretary Ryan Zinke stopped the programmatic environmental impact statement process.
The environmental groups are arguing that the federal coal leasing program needs to update its decades-old programmatic EIS to account for more recent information about climate change.
Their lawyer, Eric Citron, a partner with Goldstein & Russell P.C., said updating environmental protection was inherent in the design of the National Environmental Policy Act. "They wanted ongoing activities of the government to be conducted in light of information about the environmental consequences."
Gray, who works in the U.S. Department of Justice's Environment and Natural Resources Division, said the appeal had no merit due to a section of the Administrative Procedure Act concerning which actions are reviewable. "As a threshold matter, there is failure here by the appellants to challenge any final agency action."
However, Judge Sri Srinivasan said he was having trouble understanding why Gray's argument did not collapse since the actions of the program are ongoing.
"It seems anomalous to say that the establishment of the framework is done and over with, and every [coal lease] implementation decision — we're going to treat it as if it's this hermetically sealed application which has nothing to do with the overarching framework," he said.
Srinivasan wanted to know under which situations someone could challenge the environmental standards the department used in its coal lease program.
Gray said the only ways to get judicial review would be to either challenge an individual lease finding over whether the overarching programmatic EIS is inadequate in that case or bring a petition for agency action to adjust the program. The current case, in contrast, addresses an alleged failure of the coal-leasing program in general.
Michael Robinson, an attorney representing the state of Wyoming, an intervenor on behalf of the government in the case, argued that the program framework implemented in 1979 effectively no longer exists, as the process of setting coal leases through designated regions based on national production goals is no longer used. He said the programmatic EIS at the time did not cover lease by applications — a method used by coal producers. Hence, the environmental groups' demand for a new environmental impact statement for the original program is not valid.
The judges may take several months to make a ruling, according to someone involved in the case.