Ferguson argues reversal violates the National Environmental Policy Act…
Attorney General Bob Ferguson today filed a federal lawsuit against the U.S. Department of the Interior and the Bureau of Land Management over a program to lease coal mining rights on public land, which contributes to significant coal-train traffic through the state of Washington. The lawsuit challenges Interior Secretary Ryan Zinke’s decision to restart the federal coal leasing program without supplementing or replacing its nearly 40-year-old environmental study. That decision, Ferguson argues, violates the National Environmental Policy Act (NEPA).
The lawsuit, jointly filed today by California, New Mexico, New York and Washington in the U.S. District Court for the District of Montana, Great Falls Division, asks the court to declare that the federal government acted “arbitrarily, capriciously, contrary to law, abused their discretion, and failed to follow the procedure required by law.”
The states also seek an injunction forcing the federal government to halt the coal leasing program unless and until it completes the environmental impact review required by law.
“Taxpayers deserve to have their natural resources managed responsibly,” Ferguson said. “Responsible stewardship requires an understanding of the costs and benefits of extraction, which just months ago these same agencies admitted they simply don’t have. That’s unacceptable.”
The Bureau of Land Management is charged with managing coal resources on 570 million acres of public lands. Over the past decade, BLM-administered leases produced more than 4 billion tons of coal.
NEPA requires an agency to supplement a past Environmental Impact Statement (EIS) when there are “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” Yet BLM manages federal coal based on an EIS and regulations originally adopted 38 years ago. Climate change was not fully understood at the time, and market conditions, infrastructure development, scientific understanding and national priorities were dramatically different.
The agency has a statutory obligation to fully consider the impacts of coal-leasing activities and secure a fair return from the sale of public resources. In 2013, however, the Department of the Interior’s Office of the Inspector General issued a report concluding that “BLM faces significant challenges in the areas of coal leasing and mine inspection and enforcement.” The Inspector General noted that BLM’s management practices resulted in millions of dollars in lost royalties to the federal treasury, because the agency was “not receiving the full, fair market value for the leases.”
Substantial documentation gathered by BLM last year during the previous Administration shows that, in order to uphold its obligation, BLM’s decades-old environmental analysis must be updated. The scoping process for this update began in March 2016, and the updated analysis was expected by early 2019.
With no legal justification — merely a complaint about the time and cost of complying with the law — Secretary Zinke terminated this required environmental review and restarted the federal coal leasing program on March 29, 2017.
Washington state impacts
Coal from federal leases following Zinke’s order would be transported by rail across Washington. In particular, coal from the Powder River Basin is shipped to or through the state. According to the Washington Department of Transportation, the baseline number of trains in 2015 numbered 70 per day on some track segments in the state, including multiple coal trains.
Washington has a further interest in the effects of increased coal production and consumption on climate change. Washington experiences many negative effects of climate change, including rising ambient temperatures, a diminished and unpredictable snowpack necessary for water consumption and hydropower generation, and ocean warming and acidification, which is harmful to Washington’s shellfishery.
Washington has enacted statutes and expended significant financial resources in reducing greenhouse gas emissions and slowing the pace of climate change.
Washingtonians are concerned by and engaged in these impacts. During the scoping process for the environmental review halted by Zinke, BLM received more comments from Washington residents than any other state: 182 out of a total 1,239 individual commenters.
The AGO’s Counsel for Environmental Protection and its Ecology Division are handling the case for Washington.
Attorney General Ferguson created the Counsel for Environmental Protection in 2016 to protect our environment and the safety and health of all Washingtonians.