The Nickel Report

In the wake of the April 19 ruling by Judge Morris of the US District Court of the District of Montana that required the Department of the Interior (DOI) to conduct an environmental review on its decision to lift the coal leasing moratorium, the parties disagree on the necessary remedy and the next steps. While DOI is requesting additional time to finalize its environmental review for its decision to lift the moratorium, environmental groups and states are requesting the court vacate then-Secretary Zinke’s Secretarial Order that lifted the moratorium altogether.

On April 19, Judge Morris ruled that the Secretarial Order that lifted the Obama-era coal leasing moratorium was a major federal action that triggered NEPA, and the agency failed to conduct the necessary review. Instead of immediately reinstating the moratorium, Judge Morris ordered additional briefing on the remedy, setting a July 22 deadline.

DOI did not appeal the ruling, but, instead, the Bureau of Land Management (BLM) within DOI issued a May 22 draft environmental assessment (EA). For details on the contents of the EA, see Lauren A. Bachtel & Deidre G. Duncan’s previous post, BLM Releases Draft Environmental Assessment for Lifting Coal Leasing Moratorium, (May 24, 2019). Also on May 22, DOI filed a “notice of partial compliance” with the court, stating that it would accept public comments on the draft EA for 15 days, consider the comments, respond and determine whether it needed to conduct an environment impact statement (EIS) or could finalize the EA and issue a new decision.

On July 22, the parties filed dueling briefs as to what the appropriate remedy should be and the next steps. DOI requested that the court decline to enter a remedy order at all or, in the alternative, either postpone any remedy ruling until after the agency has completed its decisionmaking or enter an order allowing parties to file supplemental remedy briefs after DOI has completed its decisionmaking. DOI stated that personnel have reviewed the comments received on the draft EA and are preparing responses to those comments, working diligently to finalize the EA. Once that process is complete, DOI stated that it will determine whether it will issue a Finding of No Significant Impact or prepare an EIS. It requested that the court give it until August 5 to make these determinations. DOI did state that, after the environmental review is completed, it will “likely issue a new decision, which may take the form of a decision record and/or new secretarial order.”

The environmental groups and states, on the other hand, requested that the court vacate the Secretarial Order that lifted the coal leasing moratorium. They argued that, when a court determines that an agency action is unlawful, vacatur is the standard remedy under the Administrative Procedures Act. They went on to argue that the EA recently drafted by the BLM is of no consequence in determining the appropriate remedy because: (1) in order to comply with NEPA, the agency must conduct its decisionmaking “on a clean slate” that isn’t arbitrary or capricious and can’t fix its NEPA violation through a “post-hoc environmental review;” and (2) even if BLM could do an environmental review after the fact, the draft EA does not satisfy its NEPA obligations.

For more information, please contact Lauren Bachtel at lbachtel@HuntonAK.com