Mining for Change



Coal mining was one of the United States’ first exploited resources. Today, the United States supplies the rest of the world with about 21% of the distributed coal.¹ Coal is also a large supplier for energy within the United States borders. According to the United States Energy Information Administration, coal accounted for 17.8% of energy consumption in 2017.² It is no surprise that coal companies take advantage of this high demand. While coal can supply the country and the world with the ability to produce a significant amount of energy, it also comes at a price. Air pollution, public health, land disruption, and global warming are a few of the top concerns.

Many environmental groups, scientists, and activists have brought these concerns to the legislature, the courts, and the companies themselves. Their goal is to ensure that what is being produced is the cleanest energy possible. The most recent lawsuit, Wildearth Guardians v. Zinke,³ brought by plaintiffs Wildearth Guardians and Montana Environmental Information Center, questions the federal government’s approval to expand the Spring Creek Mine located in Big Horn County, Montana. The requested addition was 1,117.7 acres of federal coal to extend the life of the mine.⁴

The National Environmental Policy Act (NEPA) regulates large federal projects and actions.⁵ A subsection of the act called the Environmental Impact Statements (EIS), requires a stricter model to be followed in order to ensure that the project or action will not greatly harm the environment. An EIS is necessary when the action that the federal agency will take has been deemed to have a potentially significant impact on the environment.⁶ In considering whether an agency’s action will pass the requirements under NEPA, the action is judicially reviewed. The relevant question in Wildearth Guardians v. Zinke is whether the expansion was lawfully and correctly granted.

When the Spring Creek Mine expansion was approved, the plaintiffs questioned the approval based on three concerns: coal transportation, non-greenhouse gas effects, and the emissions costs.⁷ The plaintiffs’ argument maintained that there was a failure to take a “hard look” at the named consequences and that in doing so, the approval was not in compliance with NEPA regulations.⁸ NEPA defines “hard look” to mean that there was due attention paid to any “foreseeable direct and indirect” consequences of that action.⁹

With regard to the issue of coal transportation, the defendants argued that they were not responsible for coal transportation thus its direct or indirect effect did not need to be discussed.¹⁰ With that in mind, the defendants had calculated and planned the number of greenhouse emissions that would have been produced by the transportation of the coal.¹¹ Thus the court decided that transportation and any proceeding greenhouse emissions that resulted from transportation were the defendant’s burden.

The second concern was that the Office of Surface Mining Reclamation and Enforcement (OSM) did not properly consider the non-greenhouse gas effects. The issue is the pollution that is spread through actual coal-combustion.¹² Although OSM predicted the non-greenhouse gas effects, they did not take into account the repercussions on human and environmental health from the coal combustion, as required by NEPA. An additional concern is that OSM weighed the effects of the pollution as compared against the national totals.¹³ Instead of evaluating, on its face, the effects of the pollution, it was weighed against data that will always be much higher than the individual pollution data.

Although less related to the environmental effects, the third concern involves the costs of greenhouse gas emissions. OSM gave continued praise to all of the benefits of the project, however, OSM left out the costs. Since they only reported the benefits and did not give any details into the costs, they failed to take a “hard look”.¹⁴

Summary judgment was granted to the plaintiffs based on the preceding analysis. However, fighting for a cleaner environment through the support of eco-friendly energy production is not a new battle. Whether it be the indigenous Dayak people in Indonesia who fought to keep coal mining away from their homes¹⁵ or large scale environmental organizations, people are pushing for a more organic and more green way to maintain their lifestyles. Even small victories like the summary judgment for the plaintiffs in Wildearth Guardians v. Zinke makes progress steady and keeps hope alive for a more sustainable way of living.

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Endnotes:

¹ Nᴀᴛɪᴏɴᴀʟ Aᴄᴀᴅᴇᴍɪᴇs ᴏғ Sᴄɪᴇɴᴄᴇs, ᴇᴛ ᴀʟ., Mᴏɴɪᴛᴏʀɪɴɢ ᴀɴᴅ Sᴀᴍᴘʟɪɴɢ Aᴘᴘʀᴏᴀᴄʜᴇs ᴛᴏ Assᴇss Uɴᴅᴇʀɢʀᴏᴜɴᴅ Cᴏᴀʟ Mɪɴᴇ Dᴜsᴛ Exᴘᴏsᴜʀᴇs (2018), https://www.ncbi.nlm.nih.gov/books/NBK531861/.

² U.S. Eɴᴇʀɢʏ Iɴғᴏ. Aᴅᴍɪɴ., U.S. Energy Facts Explained (May 16, 2018),

https://www.eia.gov/energyexplained/?page=us_energy_home.

³ WildEarth Guardians v. Zinke, No. CV 17-80-BLG-SPW-TJC, 2019 U.S. Dist. LEXIS 30357, (D. Mont. 2019).

Id. at *4.

⁵ U.S. Eɴᴠᴛʟ. Pʀᴏᴛᴇᴄᴛɪᴏɴ Aɢᴇɴᴄʏ, National Environmental Policy Act Review Process (last visited Apr 17, 2019), https://www.epa.gov/nepa/national-environmental-policy-act-review-process

Id.

See supra note 3.

Id. at *3.

Id. at *14.

¹⁰ Id. at *18.

¹¹ Id.

¹² Id. at *19.

¹³ Id.

¹⁴ Id. at *27.

¹⁵ Ian Morse, Mᴏɴɢᴀʙᴀʏ, In a Land Untouched by Mines, Indigenous Holdouts Fight a Coal Invasion (Mar 28, 2018), https://news.mongabay.com/2018/03/in-a-land-untouched-by-mines-indigenous-holdouts-fight-a-coal-invasion/.

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