For nearly a decade, the question of whether a mining company, Mountain Coal, would be allowed to expand operations into a pristine wilderness area deep in the Gunnison National Forest has been mired in litigation. On Aug. 10, the U.S. District Court for the District of Colorado ruled in favor of allowing the expansion.
A group of environmental advocates who brought the lawsuit are weighing their options for an appeal. “The next step is still being discussed and thought through,” said Matt Reed, public lands program director for High Country Conservation Advocates, one of the plaintiffs in the case. “HCCA and our partners will continue to fight for these public lands and the roadless lands.”
The forest land in question, dubbed the Sunset Roadless Area, is about 5,800 acres of relatively undeveloped wilderness in the North Fork Valley east of Paonia and west of Crested Butte. There are two trails in the area, but the land is popular among outdoor recreation enthusiasts for more dispersed activities such as hiking and camping. The land also includes diverse flora and fauna, fish and wildlife habitat, and significant spans of mature aspen groves.
The West Elk Mine sits adjacent to the Sunset Roadless Area and runs underneath portions of the Grand Mesa as well as the Uncompahgre and Gunnison National Forests. For years, the mine’s operator — currently Mountain Coal — has sought to expand mining operations into a 1,700-acre area of the Sunset wilderness. The expansion would involve construction of roads and drilling pads. “That’s what drives our engagement in this,” Reed said. “It’s roadless, and those areas are fewer and fewer; it really has some tremendous value that our local community cares about.”
In a move to help conserve untouched land, the U.S. Forest Service approved in 2012 what’s known as the Colorado Roadless Rule, which “extended roadless protections to a vast amount of acreage that was previously unprotected under the national rule in exchange for various concessions from environmentalists.” The rule included a provision referred to as the North Fork Exception, which allowed “for road construction related to coal mining on about 20,000 acres of previously protected land including the Sunset Roadless Area.”
Given that new North Fork Exception, the owner of the West Elk Mine then proposed a plan to expand operations into the area via a lease modification.
The following year, in 2013, multiple environmental groups filed suit, challenging the roadless rule, the changes to the lease, and the exploration plan. Ruling on the merits in 2014, U.S. District Judge R. Brooke Jackson found in favor of the environmental groups.
In particular, Jackson found “that the lease modification’s final environmental impact statement improperly discussed only the beneficial impacts expected to result from additional mining, but failed to consider environmental harms that would result. … Specifically, Jackson found that it was arbitrary for the Forest Service to, without explanation, quantify the expected economic benefits of additional mining, but fail to quantify the expected harms related to the expected increase in greenhouse gas emissions.
“In effect,” Jackson wrote, “the agency prepared half of a cost-benefit analysis, incorrectly claimed that it was impossible to quantify the costs, and then relied on the anticipated benefits to approve the project.” Jackson vacated the lease modifications and exploration plans.
Years later, Mountain Coal returned with a new plan to expand mining. The Bureau of Land Management and the Forest Service, which have to approve these plans, issued a revised environmental impact statement. That statement included the anticipated greenhouse gas emissions that would occur as a result of the mine expansion. However, notably, the plan did not mention the social cost of carbon protocol — a calculation Jackson referred to in his ruling on the previous case.
Jason Schwartz, legal director for the Institute for Policy Integrity at the New York University School of Law, which filed an amicus brief in this case, said the social cost of carbon has become an important statistic in factoring the climate impact of a specific project. “In this particular coal lease modification, the agencies decided not to use the social cost of carbon and not to calculate the climate damages specific to this project,” Schwartz said. “In our opinion that’s a very bad mistake, especially while the agencies monetize and tout the economic benefits of the coal lease project.”
Schwartz said the social cost of carbon on this project is estimated at $100 million, and that that’s just for the projected methane emissions related to new mining exploration. “It ends up being a lot more than what they’ve calculated in economic benefits, but they want to sweep millions of dollars of damages under the rug,” Schwartz said. “We feel it’s important to be up front about that. If an agency wants to approve a coal lease they should have to grapple with the climate consequences, and it should be on the agency to justify why that isn’t appropriate.”
In this case, however, High Country Conservation Advocates v. U.S. Forest Service, U.S. District Judge Phillip Brimmer did not agree. HCCA filed suit on multiple grounds, including various violations of the National Environmental Policy Act, which requires federal authorities to take a “hard look” at how a proposed project would impact the environment. In his ruling on the case as it pertained to NEPA, Brimmer wrote “Although NEPA imposes procedural requirements on federal agencies analysis, and ‘[s]o long as the record demonstrates that the agencies in question followed the NEPA procedures, which require agencies to take a ‘hard look’ at the environmental consequences of the proposed action, the court will not second-guess the wisdom of the ultimate decision.”
The plaintiffs argued the defendants failed to consider reasonable alternatives, including other locations and the use of a process known as methane flaring, which produces fewer greenhouse gas emissions. The plaintiffs also contended there was not enough discussion in the environmental impact statement as to the potential effects of the project related to climate change, including “application of the social cost of carbon protocol.”
Brimmer ruled in favor the defendants on all claims and closed the case in its entirety.
“It seems ridiculous in light of climate change and the drying West that the Forest Service is approving significant methane emissions that contribute directly to these problems,” Reed said.
Neither the U.S. Forest Service nor Mountain Coal responded to a request for comment prior to deadline.
— Chris Outcalt