WildEarth Guardians v. BLM , 870 F.3d 1222 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
September 15, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
WILDEARTH GUARDIANS; SIERRA
CLUB,
Petitioners - Appellants,
v. No. 15-8109
UNITED STATES BUREAU OF
LAND MANAGEMENT,
Respondent - Appellee,
and
WYOMING MINING ASSOCIATION;
BTU WESTERN RESOURCES, INC.;
STATE OF WYOMING; NATIONAL
MINING ASSOCIATION,
Respondents - Intervenors -
Appellees.
---------------------------
THE INSTITUTE FOR POLICY
INTEGRITY AT NEW YORK
UNIVERSITY SCHOOL OF LAW,
Amicus Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 2:13-CV-00042-ABJ)
Nathaniel Shoaff (Nathan Matthews, Sierra Club; Samanta Ruscavage-Barz,
WildEarth Guardians, with him on the briefs), Sierra Club, San Francisco,
California, for Petitioners-Appellants.
Daniel W. Wolff (Kirsten L. Nathanson and Sherrie A. Armstrong, Crowell &
Moring, LLP, Washington, D.C.; Michael Drysdale, Dorsey & Whitney, LLP,
Minneapolis, Minnesota; Andrew C. Emrich, P.C., Holland & Hart LLP,
Greenwood Village, Colorado, with him on the brief), Crowell & Moring, LLP,
Washington, D.C., for Respondent-Appellees BTU Western Resources, Inc.,
National Mining Association, and Wyoming Mining Association.
Michael T. Gray, Attorney (Philip C. Lowe, of Counsel, United States Department
of the Interior, Rocky Mountain Regional Solicitor’s Office; John C. Cruden,
Assistant Attorney General; John S. Most and Andrew C. Mergen, Attorneys, with
him on the brief), Appellate Section, Environment and Natural Resources
Division, United States Department of Justice, Jacksonville, Florida, for
Respondent-Appellee, United States Bureau of Land Management.
Erik E. Petersen (Michael J. McGrady, with him on the brief), Wyoming Office of
the Attorney General, Cheyenne, Wyoming, for Respondents-Intervenors-
Appellee State of Wyoming.
Jayni Foley Hein and Jason A. Schwartz, Institute for Policy Integrity, New York,
NY, filed an amicus curiae brief on behalf of the Institute of Policy Integrity at
New York University School of Law in support of Petitioners-Appellants.
Before BRISCOE, McKAY, and BALDOCK, Circuit Judges.
BRISCOE, Circuit Judge.
Appellants WildEarth Guardians and Sierra Club (Plaintiffs) challenge the
Bureau of Land Management’s (BLM) decision to approve four coal leases in
Wyoming’s Powder River Basin. Plaintiffs brought an Administrative Procedure
Act (APA) claim arguing that the BLM failed to comply with the National
2
Environmental Policy Act (NEPA) when it concluded that issuing the leases
would not result in higher national carbon dioxide emissions than would declining
to issue them. The district court upheld the leases. We reverse and remand with
instructions to the BLM to revise its Environmental Impact Statements (EISs) and
Records of Decision (RODs). We do not, however, vacate the resulting leases.
I.
A. Statutory and Regulatory Background
The NEPA, 42 U.S.C. §§ 4321–4370h, and its implementing regulations
promulgated by the Council on Environmental Quality (CEQ), 40 C.F.R. §§
1500.1–1518.4, are “our national charter for protection of the environment.” 40
C.F.R. § 1500.1(a). Section 102 of NEPA, in relevant part, requires federal
agencies to
include in every recommendation or report on proposals for
legislation and other major Federal actions significantly affecting the
quality of the human environment, a detailed statement by the
responsible official on-
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented, [and]
(iii) alternatives to the proposed action.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348–39 (1989)
(emphasis added) (quoting 42 U.S.C. § 4332(C)). In these EISs, agencies must
analyze direct effects, reasonably foreseeable indirect effects, and effects that are
3
cumulative over time or aggregated with other forces outside the agency’s
proposed action. 40 C.F.R. § 1508.7, 1508.8.
The alternatives analysis “is the heart of the environmental impact
statement.” § 1502.14. Agencies “should present the environmental impacts of
the proposal and the alternatives in comparative form, thus sharply defining the
issues and providing a clear basis for choice among options by the decisionmaker
and the public,” including a “no action” alternative. Id. Agencies must
“rigorously explore and objectively evaluate” these alternatives “so that reviewers
may evaluate their comparative merits.” Id. “Without substantive, comparative
environmental impact information regarding other possible courses of action, the
ability of an EIS to inform agency deliberation and facilitate public involvement
would be greatly degraded.” New Mexico ex rel. Richardson v. BLM, 565 F.3d
683, 708 (10th Cir. 2009). Courts often characterize NEPA’s procedural
requirement as obliging agencies to take a “hard look” at the environmental
consequences and alternatives. Methow Valley, 490 U.S. at 350; Richardson, 565
F.3d at 704; Biodiversity Conservation All. v. U.S. Forest Serv., 765 F.3d 1264,
1267 (10th Cir. 2014). NEPA does not provide a private right of action, so we
review this claim under the APA. 5 U.S.C. §§ 701–706.
B. Factual and Procedural Background
The Powder River Basin (PRB) region is the largest single contributor to
United States’ domestic coal production. In 2008, PRB coal represented 55.5% of
4
the United States’s surface-mined coal, and 38.5% of the country’s total coal
production. App. at 983, 988. The BLM controls much of the region and is often
in the business of approving mining infrastructure and issuing mining leases
under the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §§
1701–1787, the Mineral Leasing Act, 30 U.S.C. §§ 181–287, and BLM’s own
regulations and plans. See 43 C.F.R. §§ 1601.0–1610.8, 43 C.F.R. §§ 3400.0-
3–3487.1.
At issue in this case are four coal tracts 1 that extend the life of two existing
surface mines near Wright, Wyoming: the Black Thunder mine and the North
Antelope Rochelle mine. The four “Wright Area Leases” at issue here are North
Hilight, South Hilight, North Porcupine, and South Porcupine. The tracts are also
near, and partially within, the Thunder Basin National Grassland, a national
forest.
Alone, the two existing mines account for approximately 19.7% of the
United States’s annual domestic coal production. App. at 637, 987. 2 The North
1
BLM’s environmental analysis included two additional tracts, West
Hilight and West Jacobs Ranch, which are not at issue in this litigation.
2
According to BLM, the new leases will maintain the same production at
these mines as in the past: 135 million tons per year at Black Thunder and 95
million tons per year at North Antelope Rochelle, for a total of 230 million tons
per year. And according to the Energy Information Administration’s (EIA) 2008
Energy Outlook Report, relied on heavily by all parties, the United States
produced 1.16 billion tons of coal in 2006, and was predicted to produce roughly
the same in 2010. Using simple division, one can arrive at the percentage.
Plaintiffs cite to a declaration from a resource economist for the percentage, but
5
and South Hilight leases will extend the life of the Black Thunder mine by
approximately four years; the North and South Porcupine leases will extend the
life of the North Antelope Rochelle mine by approximately nine years. Without
these leases, the existing mines would cease operations after the currently leased
reserves are depleted. The North Hilight lease was never sold, although the BLM
did prepare a ROD for it. Mining has already commenced under three of the four
leases, as counsel stated at oral argument. In total, the tracts at issue contain
approximately two billion tons of recoverable coal.
Pursuant to NEPA, BLM prepared a Draft Environmental Impact Statement
(DEIS) for the leases. 74 Fed. Reg. 32,642-01 (July 8, 2009). In the DEIS, BLM
compared its preferred action (denominated Alternative 2 in the DEIS) to a no
action alternative in which none of the coal leases would be issued, as it was
required to do under CEQ regulations. 40 C.F.R. § 1502.14. Regarding carbon
dioxide emissions and impacts on climate change, BLM concluded that there was
no appreciable difference between the United States’s total carbon dioxide
emissions under its preferred alternative and the no action alternative. BLM
concluded that, even if it did not approve the proposed leases, the same amount of
coal would be sourced from elsewhere, and thus there was no difference between
the proposed action and the no action alternative in this respect.
doing so is unnecessary and inadmissible as extra-record evidence. See App. at
267–68.
6
BLM then received comments on the DEIS, including from Plaintiffs.
WildEarth Guardians commented that BLM’s conclusion on carbon dioxide
emissions under the no action alternative was “at best a gross oversimplification,
and at worst entirely impossible.” App. at 725. They argued that if the tracts
were not leased, “it will be very difficult for domestic coal mines,” or
international coal mines, to replace that quantity of coal at the same price, making
“other sources of electricity,” with lower carbon dioxide emissions rates, “more
competitive with coal.” Id. at 725–26. WildEarth Guardians concluded that the
authorization of the leases would have a significant effect on national carbon
dioxide emissions as compared to the no action alternative, and that BLM
therefore failed to adequately compare the alternatives. WildEarth Guardians did
not provide BLM with any factual support for its argument against BLM’s
replacement theory, nor did they suggest that BLM use the economic modeling
tools employed by other federal agencies under similar circumstances.
In its responses to comments, BLM stood by its conclusion regarding the
comparative demand for coal and resulting carbon dioxide emissions. It
acknowledged that cost is one factor which “determine[s] the potential for
switching to non-carbon based electric generation,” and that “if the demand for
coal decreases nationwide, then coal production and coal mining would decrease.”
Id. at 48. But it did not acknowledge that denying the Wright Area Leases would
have any effect on the price for coal or thereby demand for it. Instead, the BLM
7
concluded that because Energy Information Administration (EIA) projections
indicated that population and energy demand would rise, and that coal would
remain the largest fuel in the energy mix, demand for coal would remain static
even in the face of the potential reduction in supply. The BLM stated that
“[l]imiting one or even several points of fuel supply will not affect coal use
because of the diverse group of national and international suppliers.” Id. at 41.
The BLM published its Final Environmental Impact Statement (FEIS) for
the Wright Area Leases in July, 2010. The FEIS acknowledges some basic
presumptions that no one in this litigation contests: the quantity of coal proposed
in these leases would result in approximately 382 million tons of annual carbon
dioxide emissions from electricity generation, id. at 987, which is the equivalent
of roughly 6% of the United States’s total emissions in 2008, see id. at 984,
anthropogenic carbon dioxide emissions contribute to climate change, id. at
977–80, climate change presents a litany of environmental harms disbursed
throughout the globe, id. at 980–82, and if the nation’s energy mix shifts towards
non-coal energy sources, less carbon dioxide would be emitted. Id. at 997–98.
However, the BLM’s contested conclusion regarding comparative carbon
dioxide emissions from the no action alternative remained in the FEIS:
It is not likely that selection of the No Action alternative[] would
result in a decrease of U.S. CO2 emissions attributable to coal
mining and coal-burning power plants in the longer term, because
there are multiple other sources of coal that, while not having the
cost, environmental, or safety advantages, could supply the demand
8
for coal beyond the time that the Black Thunder . . . and North
Antelope Rochelle mines complete recovery of the coal in their
existing leases.
Id. at 988. For purposes of this conclusion, the BLM “assum[ed] that all forms of
electric generation would grow at a proportional rate to meet forecast electric
demand” in 2010, 2015, and 2020. Id. at 984. The FEIS relies on various
governmental reports, including the EIA’s Annual Energy Outlook reports from
2008, 2009, and 2010. Under these projections, coal’s share of the energy mix
continues to represent the largest portion of the United States’s energy mix. The
BLM predicted that overall demand for coal in the United States was predicted to
grow during the life of the Wright Area Leases.
The BLM then concluded that, because overall demand for coal was
predicted to increase, the effect on the supply of coal of the no action alternative
would have no consequential impact on that demand. This long logical leap
presumes that either the reduced supply will have no impact on price, or that any
increase in price will not make other forms of energy more attractive and decrease
coal’s share of the energy mix, even slightly.
The BLM acknowledged that many forces might impact future demand for
coal, but it continued to disagree that a lack of supply leading to an increase in
price could be one of those forces. Additionally, BLM also repeatedly noted that
PRB coal enjoys several cost advantages over coal from other regions, but again,
9
disavows the possibility that the no action alternative, in which half of current
PRB production would stop, would impact the price of coal or the demand for it.
Following the FEIS, BLM issued a ROD for each of the four tracts,
deciding to offer them for lease. Each ROD is practically identical in its
discussion of the climate change implications of the no action alternative. BLM
addressed this issue as follows:
Denying this proposed coal leasing is not likely to affect current or
future domestic coal consumption used for electric generation.
***
Based on the[] studies [BLM consulted], even with a considerably
more optimistic projection for renewable sources, coal use continues
to be projected as the largest portion of the domestic electric fuel
mix. As described in the Final EIS, the key determinant of energy
consumption is population. As human population and activities have
increased over time, coal and other carbon-based fuels have been
utilized to provide for these additional energy demands.
***
Further, BLM disagrees with the comment that denying the proposed
Federal coal leasing application would consequentially reduce the
overall rate of national coal consumption by electric generators.
Numerous mines located outside of the PRB extract and produce coal
in the United States [and] many mines outside of the PRB have the
capacity to replace the coal production generated by the Black
Thunder Mine [and the North Antelope Rochelle mine].
***
The inability of the Black Thunder Mine, or any other existing PRB
producer, to offer reserves in the coal market would not cause
electric generators to stop burning coal. Utility companies will
likely operate existing coal-burning facilities until either cost or
regulatory requirements render them ineffective or they are replaced
10
by other reliable large scale capacity electric generation technologies
capable of consistently supporting the bulk electrical demands.
Id. at 1057–58.
Finally, and somewhat contradictory to its assertions regarding replacement
coal not having an effect on the market, BLM noted that:
PRB coal has competed for an increasing share of coal sales in the
market primarily because it [ha]s lower cost, [is] environmentally
compliant, and [its] successful post-mining reclamation has been
thoroughly demonstrated. For these reasons, over the past several
decades, PRB coal has been replacing other domestic coals in the
open market, and would be expected to compete similarly in the
future . . . . When current reserves are depleted at these mines, their
production would likely be replaced by other domestic and,
potentially, international coal producers with coal that is more costly,
less environmentally compliant, and has greater residual
environmental impact.
Id. at 1059.
Since BLM’s decision, North and South Porcupine and South Hilight have
already been leased. As mentioned, North Highlight has not yet been sold. The
South Hilight tract went to Ark Land Company; the Porcupine tracts are leased to
BTU Western Resources, Inc.
In 2012, Plaintiffs challenged the four RODs and the FEIS in federal
district court in three consolidated cases. The State of Wyoming intervened, as
did a group of mining interests (BTU Western Resources, Inc., the National
Mining Association, and the Wyoming Mining Association, collectively, Mining
Appellees). The New York University School of Law’s Institute for Policy
11
Integrity (the Institute) filed a motion for leave to file an amicus brief in support
of the Plaintiffs’ position, which we now grant. The Plaintiffs objected to BLM’s
no action alternative analysis before the district court, among various other issues,
but the district court did not specifically address it. In the end, the district court
upheld the BLM’s actions as reasonable, and Plaintiffs timely appealed this
narrow issue.
II.
The Mining Appellees challenge the Plaintiffs’ Article III standing. See
U.S. Const. Art. 3 § 2 (limiting the jurisdiction of federal courts to “cases” and
“controversies”). The remaining Appellees (BLM and the State of Wyoming) do
not.
The Plaintiffs must show that their individual members have standing; that
is, that they (1) have suffered or will imminently suffer a concrete and
particularized injury that is (2) fairly traceable to the challenged agency action,
and (3) likely to be redressed by a favorable decision. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992). Next, the Plaintiffs must demonstrate that
the “interests at stake are germane to the organization’s purpose” and that
“neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 181 (2000); Hunt v. Wash. State Apple Adver.
Comm’n, 432 U.S. 333, 343 (1977). Article III standing must be established for
12
each form of relief sought, Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009), and assessed “at the time the suit is filed.” WildEarth Guardians v. Pub.
Serv. Co. of Colorado, 690 F.3d 1174, 1185 (10th Cir. 2012) (relying on Laidlaw,
528 U.S. at 189); see also Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1157
(2013) (“[W]e assess standing as of the time a suit is filed.”).
The Plaintiffs have standing; they have proved every element. The
environmental impacts of the Wright Area Leases are germane to the purposes of
both the Sierra Club and the WildEarth Guardians. As for injury in fact,
Plaintiffs presented declarations from individual members establishing harms to
their personal aesthetic and recreational interests in the Thunder Basin National
Grasslands, which would be adversely affected by the mining leases. The
Supreme Court has repeatedly acknowledged this type of injury as sufficient.
Laidlaw, 528 U.S. at 183. In a NEPA challenge, “[t]o establish causation, a
plaintiff need only show its increased risk is fairly traceable to the agency’s
failure to comply with [NEPA]” and the agency’s resulting “uninformed
decisionmaking.” Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445,
451-52 (10th Cir. 1996). Here, the Plaintiffs pointed out that the increased risk of
environmental harm is directly tied to BLM’s inadequate alternatives comparison.
“[T]he normal standards for redressability are [also] relaxed” in the NEPA
context. Id. at 452 (quoting Defenders of Wildlife, 504 U.S. at 572 n.7). “[A]
plaintiff need not establish that the ultimate agency decision would change upon
13
[NEPA] compliance” but “rather . . . that its injury would be redressed by . . .
requiring the [agency] to comply with [NEPA]’s procedures.” Id. Here,
Plaintiffs argued that their injuries are redressable through the relief they seek:
vacatur of the BLM’s FEIS, RODs, and the resulting leases. Sierra Club v. U.S.
Dep’t of Energy, 287 F.3d 1256, 1265–66 (10th Cir. 2002) (“The alleged injury is
the potential environmental impact of an uninformed decision to” move forward
with a particular project. “This injury is redressable by a court order requiring
the [agency] to undertake an NEPA . . . analysis in order to better inform itself of
the consequences of its decision.”).
Mining Appellees argue that Plaintiffs lack standing to litigate this appeal
for two alternative reasons: (1) the Plaintiffs never had standing to challenge
BLM’s climate change analysis because their alleged injuries are not caused by
climate change, or (2) the Plaintiffs had a form of derivative standing in the
district court because they also challenged localized environmental impacts, but
lost their standing on appeal by abandoning that challenge. Neither of these
arguments is persuasive.
First, it is not the case that Plaintiffs’ injury must be tied to the particular
deficiency alleged in the FEIS, i.e., that Plaintiffs must allege a climate-change
related injury in order to have standing to challenge BLM’s analysis of climate
change impacts. If anything, Supreme Court precedent indicates that we should
focus on the form of relief, rather than the arguments upon which that relief might
14
be based. See Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59,
72–79 (1978). In Duke Power, the Court summarized the defendants’ argument,
and “declined to accept” it: “Since the environmental and health injuries claimed
by appellees [resulting from the construction of a new nuclear power plant in their
area] are not directly related to the constitutional attack on the Price-Anderson
Act [authorizing construction], such injuries, the argument continues, cannot
supply a predicate for standing.” Id. at 78. The Court was unconvinced because
“but-for” the challenged statute, plaintiffs’ injuries would not occur. Id. “Where
a party champions his own rights, and where the injury alleged is a concrete and
particularized one which will be prevented or redressed by the relief requested,
the basic practical and prudential concerns underlying the standing doctrine are
generally satisfied when the constitutional requisites are met.” Id. at 80–81.
Our own precedents indicate that the legal theory and the standing injury
need not be linked as long as redressability is met. See Rio Hondo, 105 F.3d at
452; S. Utah Wilderness All. v. Office of Surface Mining Reclamation & Enf’t,
620 F.3d 1227, 1233–34 (10th Cir. 2010) (concluding that aesthetic and
recreational environmental injuries conferred standing to challenge agency
decision on whether the mining company’s time window to commence mining had
expired).
We have not specifically addressed whether local, non-climate injuries may
support standing for a challenge to NEPA climate change analysis, but the
15
District of Columbia Circuit has. 3 In WildEarth Guardians v. Jewell, 738 F.3d
298 (D.C. Cir. 2013), the court concluded that WildEarth Guardians had standing
to challenge inadequate NEPA analysis of climate change impacts “based on their
members’ aesthetic and recreational injuries caused by local pollution,” and did
not require climate-based injury because “[v]acatur of the BLM order would
redress the Appellants’ members’ injuries.” Jewell, 738 F.3d at 306. Relying on
Duke Power, the District of Columbia Circuit rejected the argument that “the
specific type of pollution causing the Appellants’ aesthetic injury be the same
type that was inadequately considered.” Id. at 307. Such a requirement would, in
that court’s words, “slice[] the salami too thin.” Id.
Alternatively, Mining Appellees argue that, even if Plaintiffs had standing
to challenge the climate change analysis in the district court, they lost that
standing on appeal. Mining Aplee. Br. at 9–10. We disagree. We have explained
3
Several district courts have also addressed the issue, but are not
unanimous. WildEarth Guardians v. Bureau of Land Mgmt., 8 F. Supp. 3d 17,
29–30 (D.D.C. 2014), appeal dismissed, No. 14-5137, 2014 WL 3014914 (D.C.
Cir. June 20, 2014) (finding Article III standing in identical situation); High
Country Conservation Advocates v. U.S. Forest Serv., 52 F. Supp. 3d 1174, 1186
(D. Colo. 2014) (same); WildEarth Guardians v. U.S. Forest Serv., 828 F. Supp.
2d 1223, 1235 (D. Colo. 2011) (same); Amigos Bravos v. U.S. Bureau of Land
Mgmt., 816 F. Supp. 2d 1118, 1127–36 (D.N.M. 2011) (under different facts,
finding no injury or causation where injury alleged was change to New Mexico
climate resulting from the oil and gas lease and there was a lack of support
showing impacts to local geographic area); Kunaknana v. U.S. Army Corps of
Engineers, 23 F. Supp. 3d 1063, 1081–83 (D. Alaska 2014) (affidavits did not
support group’s members’ actual or imminent use of the area subject to proposed
agency action, and rejecting the “contiguous ecosystem” argument).
16
that “[t]he plaintiff bears the burden to establish standing at the time the suit is
filed, and if the defendant’s offending conduct has ceased by that time, we
dismiss for lack of redressability. But if the offending conduct ceases after the
suit is filed, the defendant must establish mootness by showing that its offending
conduct ‘could not reasonably be expected to recur.’” WildEarth Guardians, 690
F.3d at 1185–86 (quoting Laidlaw, 528 U.S. at 189). Here, Mining Appellees
point to no facts that suggest the Plaintiffs did not have standing to sue when they
filed their complaint, as previously noted. Neither do the Mining Appellees argue
that the facts undergirding the Plaintiffs’ standing argument have changed,
causing the case to moot since the Plaintiffs filed the Complaint. We therefore
conclude that the Plaintiffs have standing to bring this lawsuit.
III.
Turning to the merits, the central issue in this case is whether the BLM’s
assumption that there was no real world difference between issuing the Wright
area leases and declining to issue them because third party sources of coal would
perfectly substitute for any volume lost on the open market should the BLM
decline to issue the leases was arbitrary and capricious. We hold that it was.
A. Standard of Review
We apply the same standard of review as the district court in this
administrative challenge: the familiar “arbitrary and capricious” standard.
Richardson, 565 F.3d at 704-05; 5 U.S.C. § 706(2)(A) (“The reviewing court shall
17
. . . hold unlawful and set aside agency action, findings, and conclusions found to
be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.”). An agency’s decision is arbitrary and capricious if the agency (1)
“entirely failed to consider an important aspect of the problem,” (2) “offered an
explanation for its decision that runs counter to the evidence before the agency, or
is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise,” (3) “failed to base its decision on consideration of
the relevant factors,” or (4) made “a clear error of judgment.” Richardson, 565
F.3d at 704 (quoting Utah Envtl. Cong. v. Troyer, 479 F.3d 1269, 1280 (10th Cir.
2007)). “[T]he arbitrary and capricious standard focuses on the rationality of an
agency’s decision making process rather than on the rationality of the actual
decision . . . .” Colo. Wild v. United States Forest Serv., 435 F.3d 1204, 1213
(10th Cir. 2006). “This standard of review is ‘very deferential’ to the agency’s
determination, and a presumption of validity attaches to the agency action such
that the burden of proof rests with the party challenging it.” Kobach v. United
States Election Assistance Comm’n, 772 F.3d 1183, 1197 (10th Cir. 2014).
In the NEPA context, an agency’s EIS is arbitrary and capricious if it fails
to take a “hard look” at the environmental effects of the alternatives before it.
See All Indian Pueblo Council v. United States, 975 F.2d 1437, 1445 (10th Cir.
1992). We have characterized our review of whether agencies took the requisite
“hard look” as a “rule of reason standard (essentially an abuse of discretion
18
standard).” Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152,
1163 (10th Cir. 2002), as modified on reh’g on other grounds, 319 F.3d 1207
(10th Cir. 2003); Richardson, 565 F.3d at 708-09. This means that “[a] court
reviewing the adequacy of an EIS merely examines ‘whether there is a reasonable,
good faith, objective presentation of’ the topics NEPA requires an EIS to cover.”
Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1522 (10th Cir. 1992)
(quoting Johnston v. Davis, 698 F.2d 1088, 1091 (10th Cir. 1983)). We have also
stated that the reasons for rejecting an alternative must be “plausible.” All Indian
Pueblo Council, 975 F.2d at 1446. The agency may choose the more
environmentally harmful alternative provided its reasons for doing so are
disclosed and rational. See Forest Guardians v. United States Forest Serv., 495
F.3d 1162, 1173 (10th Cir. 2007) (The agency “acknowledged that the project
would cause a number of significant environmental problems -- including dust,
noise, and diesel fumes -- but, as noted by USFS, it opted to pursue the project
anyway based on other considerations. Idiosyncratically, NEPA does not require
more.”).
B. NEPA Analysis
The Plaintiffs argue the BLM’s substitution assumption rendered its
comparison of the preferred alternative (issuing the leases) and the no action
alternative arbitrary and capricious for two reasons: the assumption itself was
arbitrary and capricious because it lacks support in the administrative record and
19
ignores basic supply and demand principles; and it ignored readily available tools
to measure the market impact of such a large contraction in the nation’s coal
supply, which amounts to a failure to acquire the information “essential to a
reasoned choice among alternatives.” Aplt. Br. at 32 (quoting 40 C.F.R. §
1502.22(a)). Plaintiffs argue that the FEIS and RODs therefore do not comply
with NEPA and CEQ regulations and should be vacated. We address these
arguments in turn.
1. The Perfect Substitution Assumption
The Plaintiffs’ first argument is persuasive. They assert that the BLM’s
assumption of “replacement” lacks any support in the administrative record. As a
factual matter, we agree. The BLM did not point to any information (other than
its own unsupported statements) indicating that the national coal deficit of 230
million tons per year incurred under the no action alternative could be easily
filled from elsewhere, or at a comparable price. It did not refer to the nation’s
stores of coal or the rates at which those stores may be extracted. Nor did the
BLM analyze the specific difference in price between PRB coal and other
sources; such a price difference would effect substitutability.
Wyoming argues on appeal, and vigorously asserted at oral argument, that
the record supports a conclusion that failing to issue the leases would not impact
the nation’s coal supply and thus would not impact the national price of coal
because the replacement coal would come from within the PRB, and enjoy the
20
same cost advantages over other regions. But BLM never indicated on the record
that coal from within the PRB would replace that extracted under these leases
(possibly to avoid any perception of agency capture); to the contrary, its
statements indicate only that replacement coal would come from outside the
region.
We also agree with the Plaintiffs that the BLM’s assumption was
contradicted by one of the principal resources on which it relies. The BLM did
not acknowledge portions of EIA’s 2008 Energy Outlook which contradict its
conclusion, and thus these portions of the report are not in the FEIS or RODs.
However, BLM relied on other excerpts of this report, and it seems only
appropriate to look to other portions of that same source for a more complete
picture of the EIA’s forecasts and expertise on the coal markets.
Principally, Plaintiffs point to a portion of the 2008 Energy Outlook which
explains that an increase in coal prices would affect national demand for coal
because it would compete less effectively against other sources of energy.
Although, as BLM points out, the report generally predicts an increase in coal
production, “different assumptions about economic growth (which mainly affect
overall electricity demand) and about the costs of producing fossil fuels (which
primarily determine the mix of supply sources for generation and petroleum
products) lead to different results.” App. at 580. The 2008 Energy Outlook
states:
21
Alternative assumptions for coal mining and transportation costs affect
delivered coal prices and demand. Two alternative coal cost cases
developed for [this report] examine the impacts on U.S. coal markets of
alternative assumptions about mining productivity, labor costs, and mine
equipment costs on the production side, and about railroad productivity and
rail equipment costs on the transportation side. In the high coal cost case,
the average delivered coal price in 2006 dollars is $2.76 per million Btu in
2030—52 percent higher than in the reference case (Figure 96). As a
result, U.S. coal consumption is 4.8 quadrillion Btu (16 percent) lower than
in the reference case in 2030, reflecting both a switch from coal to natural
gas, nuclear, and renewables in the electricity sector and reduced CTL
[coal-to-liquids] production. In the low coal cost case, the average
delivered price in 2030 is $1.29 per million Btu—29 percent lower than in
the reference case—and total coal consumption is 2.1 quadrillion Btu (7
percent) higher than in the reference case. Id. at 581; see also id. at 678
(Table D12 of EIA 2008 Energy Outlook, showing a projected difference of
26% in coal use from the “low cost” case in 2030 to the “high cost” case).
Thus, the report supports what one might intuitively assume: when coal carries a
higher price, for whatever reason that may be, the nation burns less coal in favor
of other sources. A force that drives up the cost of coal could thus drive down
coal consumption.
Seemingly counter to its entire argument, BLM admits that the 2008 Energy
Outlook “undoubtedly predicts that coal demand may decline in response to
increased coal price, and BLM has never suggested otherwise.” BLM Br. at 32.
But, BLM argues, overall increased demand for electricity will override the effect
of increased coal prices. But there is no evidence in the record that BLM
considered the potential impact of increased price on demand but rather BLM
merely concluded it would have no impact. The record contains only BLM’s
conclusions that the effect on demand would be “inconsequential,” with no
22
reference to how, or if, it decided which demand-driving factors would prevail or
why.
That this perfect substitution assumption lacks support in the record is
enough for us to conclude that the analysis which rests on this assumption is
arbitrary and capricious. True, “the mere presence of contradictory evidence does
not invalidate the Agencies’ actions or decisions.” Wyo. Farm Bureau Fed’n v.
Babbitt, 199 F.3d 1224, 1241 (10th Cir. 2000). If the agency is faced with
conflicting evidence or interpretations, “[w]e cannot displace the agencies’ choice
between two conflicting views, even if we would have made a different choice
had the matter been before us de novo.” Custer Cty. Action Ass’n v. Garvey, 256
F.3d 1024, 1036 (10th Cir. 2001); see also Holy Cross Wilderness Fund v.
Madigan, 960 F.2d 1515, 1527 (10th Cir. 1992) (quoting Friends of the Earth v.
Hall, 693 F. Supp. 904, 922 (W.D. Wash. 1988) (“A federal court is not in the
business of resolving scientific disagreements between plaintiffs’ experts and the
[agency’s] experts.”)).
But this assumption nevertheless falls below the required level of data
necessary to reasonably bolster the Bureau’s choice of alternatives. A number of
our cases discuss the quality of evidentiary support sufficient to avoid our
concluding that a challenged NEPA analysis is arbitrary and capricious. The
evidence must be sufficient in volume and quality to “sharply defin[e] the issues
and provid[e] a clear basis for choice among options.” Citizens’ Comm. to Save
23
Our Canyons v. Krueger, 513 F.3d 1169, 1179 (10th Cir. 2008) (quoting 40
C.F.R. § 1502.14); see also All Indian Pueblo Council, 975 F.2d at 1444
(“Concerning the requisite level of detail necessary, what is required is
information sufficient to permit a reasoned choice of alternatives as far as
environmental aspects are concerned.” (quotation omitted)). Here, the blanket
assertion that coal would be substituted from other sources, unsupported by hard
data, does not provide “information sufficient to permit a reasoned choice”
between the preferred alternative and no action alternative. It provided no
information.
Even if we could conclude that the agency had enough data before it to
choose between the preferred and no action alternatives, we would still conclude
this perfect substitution assumption arbitrary and capricious because the
assumption itself is irrational (i.e., contrary to basic supply and demand
principles). “We apply a rule of reason standard (essentially an abuse of
discretion standard) in deciding whether claimed deficiencies in a FEIS are
merely flyspecks, or are significant enough to defeat the goals of informed
decisionmaking and informed public comment.” Utahns, 305 F.3d at 1163.
We have not previously addressed when the assumptions an agency makes
in its EIS render its analysis unreasonable in violation of the “rule of reason.”
However, the Supreme Court’s non-NEPA APA cases are helpful. We look to
these cases because the APA sets the minimum procedural requirements all
24
agencies must satisfy when taking formal action. See Vt. Yankee Nuclear Power
Corp. v. NRDC, 435 U.S. 519, 525 (1978).
In Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87 (1983), the
Supreme Court upheld the Nuclear Regulatory Commission’s conclusion that
permanent nuclear waste storage would not have a significant environmental
impact, which was based on the Commission’s assumption that the waste
repositories would perform perfectly. Id. at 89. The Court upheld the agency’s
decision based on the zero release assumption after considering three factors: (1)
it had a limited purpose in the overall environmental analysis, i.e., it was not the
key to deciding between two alternatives; (2) overall, the agency’s estimation of
the environmental effects was overstated, so this single assumption did not
determine the overall direction the NEPA analysis took; and (3) courts are most
deferential to agency decisions based not just on “simple findings of fact,” but in
the agency’s “special expertise, at the frontiers of science.” Id. at 102-04.
Here, the BLM’s substitution assumption appears to be quite different from
the Commission’s zero release assumption under the three factor analysis in
Baltimore Gas. First, the BLM’s perfect substitution assumption was key to the
ultimate decision to open bidding on the leases. In each of the four RODs, the
“Reasons for Decision” section first discusses the leases’ effect on coal
combustion in the nation overall, then lists the other facts that influenced its
decision in bullet points. In each ROD, the discussion opens with the assertion
25
that: “Denying this proposed coal leasing is not likely to affect current or future
domestic coal consumption used for electric generation.” E.g., App. at 1057-58.
Prioritizing the carbon emissions and global warming analysis in the RODs
suggests that this question was critical to the decision to open the leases for
bidding. Prioritizing the perfect substitution assumption within that analysis
suggests it was critical to deciding between two alternatives: whether or not to
issue the leases. The perfect substitution assumption was more than a “mere
flyspeck” in the BLM’s NEPA analysis. Richardson, 565 F.3d at 704.
Second, the BLM’s carbon emissions analysis seems to be liberal (i.e.,
underestimates the effect on climate change). The RODs assume that coal will
continue to be a much used source of fuel for electricity and that coal use will
increase with population size. We do not owe the BLM any greater deference on
the question at issue here because it does not involve “the frontiers of science.”
The BLM acknowledged that climate change is a scientifically verified reality.
Climate science may be better in 2017 than in 2010 when the FEIS became
available, but it is not a scientific frontier as defined by the Supreme Court in
Baltimore Gas, i.e., as barely emergent knowledge and technology. Balt. Gas,
462 U.S. at 92. Moreover, the climate modeling technology exists: the NEMS
program is available for the BLM to use.
Plaintiffs also cite authority questioning other agency assumptions similar
analytically to the perfect substitution assumption. The primarily disputed
26
case—Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520 (8th
Cir. 2003)—is not on point. In that case, the Eighth Circuit rejected an agency’s
argument that it did not need to consider the effect on air quality of building a
national coal railway because the exact impact was speculative. Id. at 548-50.
The agency’s FEIS had concluded that any emissions the rail project caused
would comply with any statutory caps and thus have only a known effect on air
quality, an assumption that ignored how emissions not subject to statutory caps
would affect air quality. Id. at 550.
Mid States is distinguishable from the present case. The agency there had
“completely ignored the effects of increased coal consumption” and “made no
attempt” to meet the CEQ regulation requirements. Id. at 550. Here, the BLM
has not completely ignored the effects of increased coal consumption, but rather it
has analyzed them irrationally.
This deficiency is more than a mere flyspeck. Richardson, 565 F.3d at 704.
The BLM’s perfect substitution assumption was key to the ultimate decision to
open bidding on the leases. In each of the four RODs, the “Reasons for Decision”
section first discusses the leases’ effect on coal combustion in the nation overall,
then lists the other facts that influenced its decision in bullet points. In each
ROD, the discussion opens with the assertion that: “Denying this proposed coal
leasing is not likely to affect current or future domestic coal consumption used for
electric generation.” E.g., App. at 1057-58. Prioritizing the carbon emissions and
27
global warming analysis in the RODs suggests that this question was critical to
the decision to open the leases for bidding. Prioritizing the perfect substitution
assumption within that analysis suggests it was critical to deciding between two
alternatives: whether or not to issue the leases.
Moreover, failing to adequately distinguish between these alternatives
defeated NEPA’s purpose. We have explained that if the EIS is so deficient as to
“defeat NEPA’s goals of informed decisionmaking and informed public
comment,” then it is arbitrary and capricious. See Richardson, 565 F.3d at 704.
In order for the agency’s conclusions to be upheld, “an agency must ‘examine[ ]
the relevant data and articulate[ ] a rational connection between the facts found
and the decision made.’” Id. at 713 (quoting Citizens’ Comm. to Save Our
Canyons, 513 F.3d at 1176) (alterations in original). NEPA has two purposes:
prevent uninformed agency decisions and provide adequate disclosure to allow
public participation in those decisions. See Methow Valley, 490 U.S. at 349;
Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1172 (10th Cir. 1999); see also
Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371 (1989) (referring to “the Act’s
manifest concern with preventing uninformed action”). Failing to disclose the
data critical to the key distinction between two alternatives led to what appears,
on the record, to be an uninformed agency decision and did not adequately
disclose the BLM’s rationale to the public.
28
Therefore, we hold that it was an abuse of discretion to rely on an
economic assumption, which contradicted basic economic principles, as the basis
for distinguishing between the no action alternative and the preferred alternative.
2. Modeling Tools
The Plaintiffs argue that because the BLM assumed perfect substitution, it
failed to take additional efforts to determine climate impact, a failure that
“prevented the agency from ‘providing a clear basis for choice among options by
the decisionmaker and the public.’” Aplt. Br. at 33 (quoting 40 C.F.R. §1502.14).
It points to an available computer modeling system, National Energy Modeling
System (NEMS), the BLM might have used. Contrary to BLM’s and Wyoming’s
characterizations, Plaintiffs do not argue that the failure to use these models, in
and of itself, was arbitrary and capricious or invalidates the FEIS or the RODs.
Nor could Plaintiffs make such an argument here, since they did not argue for the
necessity of modeling in their comments on the DEIS. See Gilmore v.
Weatherford, 694 F.3d 1160, 1169 (10th Cir. 2012).
Plaintiffs’ modeling argument is not persuasive. “NEPA does not require
agencies to adopt any particular internal decisionmaking structure.” Balt. Gas,
462 U.S. at 100; see also Utahns, 305 F.3d at 1166. Choosing not to adopt a
modeling technique does not render the BLM’s EIS arbitrary and capricious; its
irrational and unsupported substitution assumption does. We therefore decline to
find that the EIS and RODs arbitrary and capricious for this reason.
29
C. Deference
Despite these deficiencies, BLM argues that it is entitled to deference in its
area of expertise. BLM is correct that agencies receive deference on factual
determinations made within their special area of expertise. FERC v. Elec. Power
Supply Ass’n, __U.S.__, 136 S. Ct. 760, 782 (2016). Here, BLM argues that
comparing the demand for coal under its proposed alternative and the no action
alternative is within its area of expertise because 43 C.F.R. 3425.4(a)(1) requires
it to hold a public hearing “on the environmental assessment or environmental
impact statement, the proposed sale and the fair market value and maximum
economic recovery on the proposed lease tract” before it issues mineral leases. It
is debatable whether BLM’s conclusion on the economic implications of the no
action alternative falls squarely within BLM’s expertise, especially since it
needed to cite EIA and DOE for its minimal economic analysis, rather than
relying on internal expertise. Cf. Balt. Gas, 462 U.S. at 99–104 (deferring to the
Nuclear Regulatory Commission on impacts of nuclear waste storage, “at the
frontiers of science”); Marsh, 490 U.S. at 376–83 (deferring to Corps of
Engineers and Oregon Department of Fish & Wildlife internal expert opinions on
turbidity and temperature impacts of a forestry project). In any case, there is
nothing for the court to defer to here. BLM did not provide any reasoning or
analysis for its conclusion that the no action alternative would bear no
consequential difference to the proposed leases, other than noting that overall coal
30
demand was projected to increase under the EIA’s baseline assumptions. BLM’s
reliance on expertise deference doctrine is therefore unhelpful.
We therefore decline to extend the additional layer of deference the BLM
requests.
D. Harmless Error
The BLM argues that if it erred, any error was harmless. See 5 U.S.C. §
706 (“due account shall be taken of the rule of prejudicial error”); Richardson,
565 F.3d at 708 (“The harmless error rule applies to judicial review of
administrative proceedings, and errors in such administrative proceedings will not
require reversal unless Plaintiffs can show they were prejudiced.” (quoting Bar
MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir.1993))). The BLM argues
that even if it had discovered a significant difference in carbon dioxide emissions
between the two alternatives, it would have proceeded with the leases
nonetheless.
The BLM has forfeited any harmless error claim by failing to argue it
before the district court. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128
(10th Cir. 2011). We therefore decline to address it.
E. Relief
Plaintiffs have requested that we:
(1) declare that BLM violated NEPA in issuing the Wright Area Final
EIS and Records of Decision for the North Hilight, South Hilight,
North Porcupine, and South Porcupine leases; and (2) vacate each
31
BLM’s authorization, sale, and issuance of the North Hilight, South
Hilight, North Porcupine, and South Porcupine leases, including the
Wright Area Final EIS and individual Records of Decision
challenged here.
Aplt. Br. at 39. 4 They requested the same relief from the district court. To the
contrary, BLM argues that the appropriate form of relief would be to “reverse and
remand to the district court with instructions to remand to BLM, and not grant
injunctive relief or vacatur.” BLM Br. at 40 n.6.
Under the APA, courts “shall” “hold unlawful and set aside agency action”
that is found to be arbitrary or capricious. 5 U.S.C. § 706(2)(A). Vacatur of
agency action is a common, and often appropriate form of injunctive relief
granted by district courts. It is, however, a different question whether we may
grant vacatur of BLM’s decision, or if we must remand to the district court with
instructions to do so.
4
In April, 2016, while appeal before this court was pending, BTU Western’s
parent company, Peabody Energy Corporation, filed for chapter 11 bankruptcy.
Stipulation and Consent Order Concerning Pending Litigation, at 1. BTU
Western had successfully bid on and been issued the leases to North Porcupine
and South Porcupine, and these properties are included in the schedule of assets
in the bankruptcy proceeding. Schedule G, Voluntary Petition for Bankruptcy, at
1. Bankruptcy stays can limit litigation concerning the property. See, e.g., Bd. of
Governors of the Fed. Reserve Sys. v. MCorp Fin., 502 U.S. 32, 38 (1991); see
also 11 U.S.C. § 362(a)(1). Concerned about the future of their case, Plaintiffs
entered a Stipulation, which the bankruptcy court approved, withdrawing their
request for vacatur of the leases. Stipulation and Consent Order Concerning
Pending Litigation, at 3-4. As of April 3, 2017, BTU Western was dismissed
from the bankruptcy proceedings. The Plaintiffs reinstated their request for
vacatur.
32
In the past, we have done all of the following when placed in a similar
posture: (1) reversed and remanded without instructions, (2) reversed and
remanded with instructions to vacate, and (3) vacated agency decisions. See
Richardson, 565 F.3d at 721 (requiring BLM to conduct an EIS, rather than
issuing a FONSI, but merely reversing and remanding to the district court without
vacating the FONSI); Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1195 (10th
Cir. 2006) (where agency violated requirements of the Endangered Species Act,
“revers[ing] the district court’s order affirming authorization of the Project and
remand[ing] to the district court with instructions to vacate the Forest Service’s
approval of the Project”); Utah Envtl. Cong. v. Richmond, 483 F.3d 1127, 1140
(10th Cir. 2007) (in a challenge under the National Forest Management Act
[NFMA], also under arbitrary-and-capricious review, reversing the district court’s
“reject[ion]” of the plaintiff’s challenge, and “remand[ing] to the district court so
it may remand to the Forest Service for further administrative action consistent
with this opinion”); Ecology Ctr., Inc. v. U.S. Forest Serv., 451 F.3d 1183, 1195
(10th Cir. 2006) (in another NFMA challenge, reversing the district court’s
dismissal and remanding to the district court with instructions “to enter an order
vacating the Forest Service’s approval of the” project); New Mexico Cattle
Growers Ass’n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1285-86 (10th Cir.
2001) (“set[ting] aside” Fish & Wildlife’s critical habitat designation under the
33
Endangered Species Act, “instruct[ing]” the Service to issue a new designation,
and reversing and remanding to the district court).
We decline to vacate the leases. First, because Plaintiffs challenge a fairly
narrow issue, the district court may vacate the entire FEIS and RODs, or it might
fashion some narrower form of injunctive relief based on equitable arguments the
parties have failed to make here. Second, the question remains what will happen
to the leases which have already been issued and whether mining the lease tracts
should be enjoined—a question that the parties have not touched on in their
arguments before us. Third, the Appellees stated at oral argument that the three
leases that were issued are currently being mined.
IV.
We hold that the BLM’s EIS and RODs were arbitrary and capricious and
thus REVERSE the district court. We REMAND with instructions to enter an
order requiring the BLM to revise its EIS and RODs. We do not, however, vacate
the resulting leases.
34
WildEarth Guardians v. United States Bureau of Land Management, No. 15-8109
BALDOCK, J., concurring.
The Administrative Procedure Act provides that courts shall “hold unlawful and
set aside agency action, findings, and conclusions [that are] . . . arbitrary [and]
capricious.” 5 U.S.C. § 706(2)(A). We have held that an agency engages in “arbitrary”
and “capricious” action when, inter alia, it “offer[s] an explanation for [such action] that
runs counter to the evidence before the agency.” New Mexico ex rel. Richardson v.
Bureau of Land Mgmt., 565 F.3d 683, 704 (10th Cir. 2009) (internal citation omitted).
The question before us is whether the Bureau of Land Management (BLM) engaged in
arbitrary and capricious action when it issued the Wright Area leases on the assumption
that there would be no “consequential[]” reduction in coal use, and thus environmental
impact, if it were to decline to issue such leases. The relevant environmental impact for
purposes of this appeal is climate change, and the BLM has conceded that carbon dioxide
emissions from coal use cause climate change. See App. at 978, 987.
The Court’s opinion ably sets forth why, in light of the BLM’s concession that
coal use causes climate change, the BLM’s assumption that declining to issue the Wright
Area leases would not result in less climate impact renders the decision to issue the leases
arbitrary and capricious: (1) declining to issue the Wright Area leases would have the
effect of removing some twenty percent of the nation’s present annual coal supply from
the market; (2) replacement coal would be more costly; (3) as the cost of coal goes up,
“basic supply and demand principles” predict that demand for coal goes down; and (4)
lessened demand for coal results in less use of coal, which results in less impact on the
climate. To assume that declining to issue the Wright Area leases would not have a
“consequential[]” impact on coal use, and thus the climate, the Court concludes, runs
counter to basic supply and demand principles. Consistent with this conclusion, the
Court characterizes the BLM’s analytical flaw as an “economic” one in its opinion. See
Court’s Op. at 28.
Because the question before us is an economic one, and because in resolving that
question we dispose of this appeal, I see no need to comment on matters of climate
science, as the Court does when it attempts to distinguish this appeal from Baltimore Gas
& Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (1983). In Baltimore Gas, the
Supreme Court held the Nuclear Regulatory Commission’s assumption that permanent
storage of nuclear waste would not result in environmental harm was not arbitrary and
capricious in part because the assumption dealt with an “area of special expertise, at the
frontiers of science” and thus merited deference from the Court. Id. at 103-06. The
obvious distinction between this appeal and Baltimore Gas is this appeal does not turn on
scientific expertise; it turns, instead and in this Court’s words, on “basic economic
principles.” See Court’s Op. at 29. Perplexingly, the Court does not cite this distinction
in addressing Baltimore Gas. The Court attempts, instead, to distinguish this appeal from
Baltimore Gas by positing that unlike assumptions about nuclear waste storage,
assumptions about climate change “do[] not involve ‘the frontiers of science’” because
“[c]limate science . . . is not a scientific frontier.”
2
The assertion that climate science is settled science is, in my view, both
unnecessary to this appeal and questionable as a factual matter. Such an assertion is not
necessary to this appeal because there is no disputed issue of climate science before us
and thus no question of climate science we must decide whether to defer to the BLM on.1
As set forth above, we can distinguish Baltimore Gas on other grounds. The assertion is
questionable as a factual matter because it is contrary to evidence in the record. Section
4.2.14.1 of the Final Environmental Impact Statement (FEIS) states that “the science [of
climate change] is not settled and there is strong debate among the scientific community
that natural variability is the overwhelming factor influencing climate rather than the
accumulation of anthropogenic GHG emissions in the atmosphere.” App. at 977. The
FEIS also states that “[t]here has been, and continues to be, considerable scientific
investigation and discussion as to the causes of the recent historic rise in global mean
temperatures, and whether the warming trend will continue,” and “[g]lobal climate
models are at this time imperfect and . . . should not be used as a basis for public policy.”
Id. at 978, 982. The Court neither addresses these statements nor cites any authority
seconding its assertion that climate science is settled science. Contrary to this Court’s
1
Even if a question of climate science was before us, I am not inclined to agree
with the Court’s view that we ought not defer to agencies on such a question. “Federal
judges lack the scientific, economic, and technological resources an agency can utilize in
coping with issues” involving climate change and regulation of greenhouse gas
emissions. Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 428 (2011). “Judges may
not commission scientific studies or convene groups of experts for advice . . . .” Id. We
are, instead, “confined by a record comprising the evidence the parties present.” Id. In
view of our limitations, it seems to me that matters of climate science and its attendant
policy implications are precisely the type of questions we should defer to agencies on
under the present state of the law.
3
assertion, the Supreme Court has recognized that opposing views exist on climate
science. See Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 417 n.2 (2011).
In commenting on the merits of climate science, I fear the Court suggests we have
adjudicated the BLM’s concession about climate change as a dispositive matter, when the
validity of such concession was never before us on this appeal. The oft-cited axiom that
we decide only the matters before us counsels us to be more prudent with our choice of
commentary. See, e.g., Johnson v. United States, 559 U.S. 133, 144 (2010) (“The issue is
not before us, so we do not decide it.”). Accordingly, I concur with the Court’s analysis
of the BLM’s economic assumption and disposition of this appeal on that basis, without
joining its conclusion about climate science.
4