The Nickel Report

The Bureau of Land Management (BLM) released a draft environmental assessment (EA) evaluating the potential environmental impacts of lifting the federal coal leasing moratorium. Publication of the draft EA opens a 15-day comment period that ends on June 6, 2019. This review was necessitated by the April 19 decision of the US District Court for Montana in Citizens for Clean Energy, et al v. Department of the Interior, et al. The court held that BLM’s actions in lifting the moratorium via a March 2017 secretarial order (Zinke Order) were arbitrary and capricious and in violation of National Environmental Policy Act (NEPA) because it was a major federal action for which there was no such review. The court did not immediately reinstate the coal leasing moratorium or require a specific environmental review, but instead stated that BLM had an obligation to study the environmental impacts of lifting the coal leasing moratorium and required the parties to submit additional briefing on the remedy.

The BLM issued a total of six leases during the 24-month timeframe between the lifting of the moratorium and the presumptive date on which the BLM would have resumed leasing activities had the Jewell Order—establishing the coal leasing moratorium—remained in effect. Of these six leases, three of the applications would have been facially exempt from the moratorium under the terms of the Jewell Order. The remaining three non-exempt leases and their respective issue dates represent the universe of lease issuances traceable to the Zinke Order’s resumption of normal leasing procedures.

The EA evaluates and compares greenhouse gas (GHG) emissions—including direct, indirect and cumulative—between two alternatives: (1) No action, which would have kept the leasing moratorium in effect; and (2) the Zinke Order, allowing normal leasing procedures to resume in March 2017. Most of the analysis focuses on the three non-exempt leases issued as a result of the Zinke Order: (1) Alton Coal Lease by Application, (2) Pollyanna 8 Coal Lease, and (3) South Fork Federal Coal Lease Modification. BLM also determined that, had the moratorium remained in place, eight pending leases would have been produced about two years later in time, and the EA analyzes the impacts from pushing up the production time.

The draft EA concludes that lifting of the coal leasing moratorium “would not change the cumulative levels of GHG emissions resulting from coal leasing between” the various alternatives. It only effected the time span for when the emissions would be released—one year earlier for the three issued leases and 24 months earlier for the eight pending leases. However, the EA finds that lifting of the moratorium would result in release of additional GHGs from onsite mining, storage and transport of coal, onsite equipment and the end use of the coal. BLM states that “GHG emissions would be emitted from these phases of operations at each potential mining location.” BLM does not quantify the emissions at this stage because it says they should be evaluated for each individual lease, since the specifics of each mine are not yet known.

The EA assumes that BLM would have begun issuing leases again in March following the preparation of a programmatic environmental impact statement on the coal leasing program, which was required by the Jewell Order. The order establishing the moratorium on coal leasing “never intended to establish an indefinite moratorium in all coal leasing activities, rather it contemplated a limited pause in some leasing activities for the explicit purpose of facilitating the intent of the discretionary [programmatic environmental impact statement].”

The EA states in a footnote that the Jewell Order establishing the coal leasing moratorium was not accompanied by a NEPA analysis, “making it also legally vulnerable under the district court’s reasoning.”

On May 22, BLM submitted a filing to the court, giving it notice that BLM issued the EA in a “notice of partial compliance” with the court’s order. BLM also informed the court that, after the 15-day comment period, BLM will consider the comments, respond to them publicly and determine whether any impacts of significance require preparation of an environmental impact statement or if preparation of a finding of no significant impact is appropriate.

In addition, in the April 19 Order, the court asked Interior and opponents to work together on a possible remedy and directed the parties to submit a joint proposal. A final decision by the court will follow and could have a significant impact on coal leases on all BLM-managed lands.