Environmental Groups Challenge Colorado Mine Expansion

On July 2, 2019, petitioners WildEarth Guardians, joined by other conservation groups, filed a petition for review in the U.S. District Court for the District of Colorado seeking to challenge agency approval of a mining plan modification for the coal-producing West Elk Mine in 2018 ("Mining Plan"). WildEarth Guardians v. Bernhardt, No. 1:19-1920 (D. Colo.). The defendants in this case include the Secretary of the Interior ("Secretary"), the Bureau of Land Management ("BLM"), and the Office of Surface Mining Reclamation and Enforcement ("OSMRE"). The Mining Plan authorizes the expansion of the West Elk Mine into 1,720 acres of government-owned land in the Sunset Roadless Area.

The petitioners present four arguments, all rooted in the defendants' alleged violation of the National Environmental Policy Act ("NEPA") due to the defendants' adoption of a 2017 supplemental environmental impact statement from the leasing modification stage ("Leasing SFEIS") rather than requiring an additional supplemental environmental impact statement for the Mining Plan.

First, the petitioners assert that the defendants acted in an arbitrary and capricious manner when they failed to consider a reasonable alternative that would have reduced or offset methane pollution associated with coal mining in the expanded West Elk Mine. That alternative would have involved not requiring the Mining Plan applicant to consider a methane mitigation alternative during the evaluation of either the Leasing SFEIS or Mining Plan.

Second, the petitioners assert that the defendants failed to support: (i) their determination that the supplemental environmental impact statement from the leasing modification stage was "adequate" to cover the activities permitted by the Mining Plan; and (ii) their adoption of the Supplemental EIS without any further NEPA analysis. They allege this occurred when OSMRE issued its "Determination of NEPA Adequacy for the Mining Plan" action, a decision that signaled that the environmental analysis conducted in the Leasing SFEIS for the leasing modification was satisfactory for the Mining Plan...