SAN JUAN CITIZENS ALLIANCE; SIERRA CLUB; CENTER FOR ... · Civil Action No. 1:12-cv-1275-JLK DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT; SAN JUAN CITIZENS ALLIANCE; SIERRA CLUB;

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 1:12-cv-1275-JLK DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT; SAN JUAN CITIZENS ALLIANCE; SIERRA CLUB; CENTER FOR BIOLOGICAL DIVERSITY; and AMIGOS BRAVOS, Petitioners, v. UNITED STATES OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, an agency within the U.S. Department of the Interior; SALLY JEWELL, in her official capacity as Secretary of the Interior; AL KLEIN, in his official capacity as Regional Director of U.S. Office of Surface Mining Reclamation and Enforcement, Western Region; BOB POSTLE, in his official capacity as Manager of the Program Support Division for the Western Region of the Office of Surface Mining Reclamation and Enforcement; RICK WILLIAMSON, in his official capacity as Manager of the Indian Programs Branch of the Western Region of the Office of Surface Mining Reclamation and Enforcement; & MYCHAL YELLOWMAN, in his official capacity as Navajo Mine Team Leader in the Office of Surface Mining Reclamation and Enforcement, Respondents, and BHP Navajo Coal Company, a Delaware Corporation, Intervenor Respondent. ________________________________________________________________________

FEDERAL RESPONDENTS’ RESPONSE MERITS BRIEF ________________________________________________________________________

Case 1:12-cv-01275-JLK Document 53 Filed 11/12/13 USDC Colorado Page 1 of 78

ROBERT DREHER Acting Assistant Attorney General PETER J. MCVEIGH Attorney Environment and Natural Resources Division U.S. Department of Justice Mailing Address: P.O. Box 7415 Ben Franklin Station Washington, DC 20044-7415 Street Address: 950 Pennsylvania Ave., N.W. Robert F. Kennedy Bldg., Rm. 2630 Washington, DC 20530 Telephone: (202) 514-4642 Fax: (202) 514-4231 [email protected]


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TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. iv GLOSSARY ..................................................................................................................... xiii INTRODUCTION ............................................................................................................... 1 BACKGROUND ................................................................................................................. 4 I. STATUTORY AND REGULATORY BACKGROUND ............................................ 4 A. The Surface Mining Control and Reclamation Act ................................................... 4 B. The National Environmental Policy Act .................................................................... 6 C. The Endangered Species Act ..................................................................................... 7 D. The Clean Air Act ...................................................................................................... 9 II. FACTUAL BACKGROUND .................................................................................... 11 A. Overview of the Navajo Mine ................................................................................. 11 B. BNCC’s Coal Supply Contract ................................................................................ 12 C. The First SMCRA Permit for the Navajo Mine ....................................................... 12 D. Diné CARE I ............................................................................................................ 13 E. The Decision Challenged in This Action ................................................................. 16 STANDARD OF REVIEW ............................................................................................... 25 ARGUMENT ..................................................................................................................... 26 I. The Proposed Action and Coal Combustion Are Not “Connected Actions” .............. 26

A. NEPA’s Prohibition Against Segmentation Is Focused on Proposed Actions and Is Not Concerned with Continued Activity and Decisions Made Years Earlier ........................................................................................................... 27


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TABLE OF CONTENTS (continued)

Page B. Coal Combustion at the Navajo Mine Is an Existing and Continuing Activity, Not a Proposed Action ............................................................................ 33 C. Even If the Proposed Action and the Combustion of Coal Could Be Deemed

“Connected Actions,” NEPA Would Not Require OSM to Further Consider Emissions from the FCPP ....................................................................................... 34

II. OSM Complied with NEPA in Identifying and Analyzing the Indirect Effects of the Proposed Action ................................................................................................. 35

A. Past Placement of Coal Combustion Byproducts at the Navajo Mine Was Not an Indirect Effect of the Proposed Action .............................................................. 35 B. NEPA Did Not Require OSM to Treat the Environmental Impacts of Coal

Combustion as Indirect Effects of the Proposed Action ........................................ 36

1. The Doctrine of Proximate Causation and NEPA’s Rule of Reason Place Reasonable Limits on the Obligations of Federal Agencies to Consider Environmental Impacts ........................................................................................... 37

2. The Proposed Approval of the Permit Revision Application Did Not Change the Status Quo with Regard to Coal Combustion at the FCPP .............................. 41 3. Further Consideration of Air Quality and the Effects of Emissions from the FCPP Would Have Merely Duplicated Completed and Ongoing Efforts of Other Governmental Agencies ............................................................................... 42 4. OSM Has Little, If Any, Authority to Address the Effects of Emissions from the FCPP ................................................................................................................. 46

5. OSM and Other Agencies Have Issued a Notice of Intent to Prepare an EIS that Addresses Continued Mining and Operation of the FCPP .............................. 48 6. The Petitioners’ Arguments Do Not Address the Most Relevant Case Law and Pertinent Facts ................................................................................................. 49

III. OSM’s Finding of No Significant Impact Was Not Arbitrary and Capricious .......... 52


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TABLE OF CONTENTS (continued)

Page A. Context ................................................................................................................... 53 B. Intensity .................................................................................................................. 53 1. Adverse Effects and Degree of Impacts to Public Health ...................................... 53 2. Unique Geographic Characteristics ........................................................................ 56 3. Alleged Controversy and Uncertainty ................................................................... 57 4. Alleged Harm to Protected Species and Threatened Violations of Environmental Laws ............................................................................................... 60

CONCLUSION ................................................................................................................. 62 CERTIFICATE OF SERVICE


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TABLE OF AUTHORITIES Page(s)

Cases: Alpine Lakes Prot. Soc’y v. U.S. Forest Serv., 838 F. Supp. 478 (W.D. Wash. 1993) ........................................................................... 31 Border Power Plant Working Group v. Dep’t of Energy, 260 F. Supp. 2d 997 (S.D. Cal. 2003) ..................................................................... 50, 55 Bullwinkel v. U.S. Dep’t of Energy, 899 F. Supp. 2d 712 (W.D. Tenn. 2012) ....................................................................... 28 Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115 (9th Cir. 1980) ......................................................................................... 38 California Trout v. Schaefer, 58 F.3d 469 (9th Cir. 1995) ............................................................................... 34, 39, 41 Catron Cty Bd. of Comm’rs v. U.S. Fish & Wildlife Serv., 75 F.3d 1429 (10th Cir. 1996) ......................................................................................... 7

Ctr. for Biological Diversity v. National Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir. 2008) ....................................................................................... 45 Ctr. for Biological Diversity v. Pizarchek, 858 F. Supp. 2d 1221 (D. Colo. 2012) ......................................................................... 13 Ctr. for Energy & Econ. Dev. v. EPA, 398 F.3d 653 (D.C. Cir. 2005) ....................................................................................... 11 Ctr. for Envtl. Law & Policy v. U.S. Bureau of Reclamation, 655 F.3d 1000 (9th Cir. 2011) ....................................................................................... 41 Chelsea Neighborhood Ass’n v. U.S. Postal Serv., 516 F.2d 378 (2d Cir. 1975) .......................................................................................... 49 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ................................................................................................. 25-26


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TABLE OF AUTHORITIES (continued) Page(s)

City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975) ......................................................................................... 49 City of Shoreacres v. Waterworth, 420 F.3d 440 (5th Cir. 2005) ......................................................................................... 40 Comm. for Auto Responsibility v. Solomon, 603 F.2d 992 (D.C. Cir. 1979) ....................................................................................... 38 Concerned Citizens, Inc. v. Strock, 563 F.3d 1033 (9th Cir. 2009) .................................................................................. 30-31 Custer County Action Ass’n v. Garvey, 256 F.3d 1024 (10th Cir. 2001) ..................................................................................... 39

Davis v. Morton, 469 F.2d 593 (10th Cir. 1972) ................................................................................. 30, 31

Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) ...................................................................................................... 37 Dickman v. City of Santa Fe, 724 F. Supp. 1341 (D.N.M. 1989) ................................................................................. 31 Diné Citizens Against Ruining our Environment v. Klein, 747 F. Supp. 2d 1234 (D. Colo. 2010) (“Diné CARE I”) ...................................... passim Envtl. Def. Fund, Inc. v. EPA, 489 F.2d 1247 (D.C. Cir. 1973) ..................................................................................... 46 Greater Yellowstone Coalition v. Tidwell, 572 F.3d 1115 (10th Cir. 2009) ..................................................................................... 33 Half Moon Bay Fishermans’ Marketing Ass’n v. Carlucci, 857 F.2d 505 (9th Cir. 1988) ......................................................................................... 39 Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng’r, 702 F.3d 1156 (10th Cir. 2012) ............................................................................... 26, 57


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Keep Yellowstone Nuclear Free v. U.S. Dep’t of Energy, No. 07-36-E-BLW, 2007 WL 3237731 (D. Idaho Oct. 30, 2007) ................................ 38 Kentucky Riverkeeper, Inc. v. Rowlette, 714 F.3d 402 (6th Cir. 2013) ......................................................................................... 59 Kleppe v. Sierra Club, 427 U.S. 390 (1976) ...................................................................................................... 59 Lone Tree Council v. U.S. Army Corps of Eng’rs, No. 06-12042, 2007 WL 1520904 (E.D. Mich. May 24, 2007) .................................... 28 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ..................................................................................................... 25

Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983) ...................................................................................................... 37 Michigan v. EPA, 268 F.3d 1075 (D.C. Cir. 2001) ..................................................................................... 10 Mid-States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520 (8th Cir. 2003) ........................................................................................ 50 Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337 (9th Cir. 1995) ......................................................................................... 38 New Jersey Dep’t of Envtl. Prot. v. U.S. Nuclear Regulatory Comm’n 561 F.3d 132 (3d Cir. 2009) .......................................................................................... 40 N. Carolina v. City of Virginia Beach, 951 F.2d 596 (4th Cir. 1991) ......................................................................................... 39

N. Plains Resource Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067 (9th Cir. 2011) ....................................................................................... 50 Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) ......................................................................................... 39


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Oregon Natural Desert Ass’n v. BLM, 625 F.3d 1092, 1109 (9th Cir. 2010) ............................................................................. 47 Pac. Coast Fed’n of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084 (9th Cir. 2012) ....................................................................................... 29 Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Dep’t of the Interior, 929 F. Supp. 2d 1039 (E.D. Cal. 2013) ......................................................................... 38 Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768 (9th Cir. 2006) ......................................................................................... 38 Portland Cement Assoc. v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973) ....................................................................................... 46 Port of Astoria v. Hodel, 595 F.2d 467 (9th Cir. 1979) .................................................................................... 30-31 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ........................................................................................................ 6 San Juan Citizens Alliance v. Stiles, 654 F.3d 1038 (10th Cir. 2011) ..................................................................................... 56 Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir. 2005) .................................................................................. 30-31 Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079 (D.C. Cir. 1973) ..................................................................................... 31 Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988) ................................................................................ 30-31 Sierra Club v. Kenna, No. 12-1193, 2013 WL 144251 (E.D. Cal. Jan. 11, 2013) ............................................ 40

Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 1985) ......................................................................................... 49


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Sierra Club v. Sigler, 695 F.2d 957 (5th Cir. 1983) ......................................................................................... 49 Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209 (11th Cir. 2002) ..................................................................................... 40

Sierra Club v. U.S. Dep’t of Energy, 255 F. Supp. 2d 1177 (D. Colo. 2002) .......................................................................... 31 Sylvester v. U.S. Army Corps of Eng’rs, 884 F.2d 394 (9th Cir. 1989) ......................................................................................... 40 Taxpayers of Michigan Against Casinos v. Norton, 433 F.3d 852 (D.C. Cir. 2006) ...................................................................................... 55

Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985) ................................................................................... 31, 34 Tri-Valley CARES v. DOE, 671 F.3d 1113 (9th Cir. 2012) ....................................................................................... 38 Uranium Watch v. U.S. Forest Serv., No. 10-721, 2010 WL 3703807 (D. Utah 2010) ........................................................... 28 Utah Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205 (10th Cir. 2002) ..................................................................................... 26 Webster v. U.S. Dep’t of Agric., No. 09-138, 2011 WL 8788223 (N.D. W.Va. June 13, 2011) ..................................... 28 W. Watersheds Project v. Bureau of Land Mgmt., 721 F.3d 1264 (10th Cir. 2013) ................................................................................. 7, 25

Westside Prop. Owners v. Schlesinger, 597 F.2d 1214 (9th Cir. 1979) ...................................................................................... 38 Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105 (9th Cir. 2000) .......................................................................... 34, 40, 41


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WildEarth Guardians v. EPA, 728 F.3d 1075 (10th Cir. 2013) ..................................................................................... 10 Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220 (10th Cir. 2008) ............................................................................... 29, 32 Statutes: The Administrative Procedure Act 5 U.S.C. §§ 701-706 ...................................................................................................... 25 The Endangered Species Act ................................................................................................. 16 U.S.C. § 1531(b) ......................................................................................................... 7 16 U.S.C. § 1536 .......................................................................................................... 8-9 16 U.S.C. § 1538 ............................................................................................................. 8 16 U.S.C. § 1539(a)(1)(B) ......................................................................................... 8, 50 The Surface Mining Control and Reclamation Act 30 U.S.C. § 1202(f) ......................................................................................................... 4 30 U.S.C. §§ 1251-1279 (Subchapter V) ............................................................. 4, 47-48

30 U.S.C. § 1256 .......................................................................................................... 4-5

30 U.S.C. § 1257 ............................................................................................................. 5

30 U.S.C. § 1260(b)(3) ......................................................................................... 5, 50-51 30 U.S.C. §§ 1265(a), (b) ................................................................................................ 5


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TABLE OF AUTHORITIES (continued)

Page(s) 30 U.S.C. § 1265(b)(10) ................................................................................................. 5

The National Environmental Policy Act 42 U.S.C. § 4332(2)(C) ................................................................................................... 6 The Clean Air Act 42 U.S.C. § 7401(b)(1) .................................................................................................... 9 42 U.S.C. § 7409 ............................................................................................................. 9 42 U.S.C. § 7410 ....................................................................................................... 9, 45 42 U.S.C. § 7475(a)(1), (4) ............................................................................................ 10

Other 15 U.S.C. § 793(c)(1) .................................................................................................... 46

Regulations: 30 C.F.R. Part 750 ........................................................................................................ 47-48 30 C.F.R. § 750.1 ................................................................................................................. 6 30 C.F.R. § 750.6 ................................................................................................................. 6 30 C.F.R. Part 773 ........................................................................................................ 47-48 30 C.F.R. § 773.15 ............................................................................................................. 47 30 C.F.R. § 780.21(f) & (g) ................................................................................................. 5 40 C.F.R. § 81.400 ............................................................................................................. 10 40 C.F.R. §§ 1500.1-1508.28 .............................................................................................. 6


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40 C.F.R. § 1502.4 ................................................................................................. 27, 29, 30 40 C.F.R. § 1508.4 ............................................................................................................. 13 40 C.F.R. § 1508.8 ........................................................................................................ 35-36 40 C.F.R. § 1508.9 ............................................................................................................... 7 40 C.F.R. § 1508.18 ........................................................................................................... 32 40 C.F.R. § 1508.25 ...................................................................................................... 27-30 40 C.F.R. § 1508.27 ........................................................................................................... 52 43 C.F.R. Part 46 ................................................................................................................ 7 43 C.F.R. § 46.30 ............................................................................................................... 57 50 C.F.R. § 402.14 ............................................................................................................ 8-9 Federal Register: Approval and Promulgation of Air Quality Implementation Plans; New Mexico, 78 Fed. Reg. 40,966 (July 9, 2013) .......................................................................... 45-46 National Ambient Air Quality Standards for Particulate Matter, 78 Fed. Reg. 3086 (Jan. 15, 2013) ................................................................................... 9 Notice to Reopen and Extend Scoping Comment Period for EIS, 77 Fed. Reg. 62,258 (Oct. 12, 2012) ......................................................................... 4, 49 Final Source Specific Plan for FCPP, 77 Fed. Reg. 51,620 (Aug. 24, 2012) ............................................................................ 44 Notice of Intent to Prepare EIS, 77 Fed. Reg. 42,329 (July 18, 2012) ......................................................................... 4, 49


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Page(s) National Emission Standards for Hazardous Air Pollutants, 77 Fed. Reg. 9304 (Feb. 16, 2012) .......................................................................... 11, 45 Supplemental Proposed Source Specific Plan for FCPP, 76 Fed. Reg. 10,530 (Feb. 25, 2011) ............................................................................. 44 Proposed Source Specific Plan for FCPP, 75 Fed. Reg. 64,221 (Oct. 19, 2010) ............................................................................. 44 National Ambient Air Quality Standards for Ozone, 73 Fed. Reg. 16,436 (Mar. 27, 2008) .............................................................................. 9 Source-Specific Federal Implementation Plan for the FCPP, 72 Fed. Reg. 25,698 (May 7, 2007) ............................................................................... 43 Regional Haze Regulations, 64 Fed. Reg. 35,714 (July 1, 1999) ............................................................................... 10 Federal Program for Indian Lands, 49 Fed. Reg. 38,462 (Sept. 28, 1984) .................................................................. 6, 12, 51 Miscellaneous Peabody Coal Co. v. OSM, 123 I.B.L.A. 195 (1992) ........................................................ 47


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GLOSSARY

Administrative Procedure Act (“APA”) BHP Navajo Coal Company (“BNCC”) Bureau of Indian Affairs (“BIA”) Clean Air Act (“CAA”) Council on Environmental Quality (“CEQ”) Cumulative Hydrologic Impact Assessment (“CHIA”) Environment Assessment (“EA”) Environmental Impact Statement (“EIS”) Environmental Protection Agency (“EPA”) Endangered Species Act (“ESA”) Four Corners Power Plant (“FCCP”) National Environmental Policy Act (“NEPA”) Navajo Nation Environmental Protection Agency (“NNEPA”) Office of Surface Mining Reclamation and Enforcement (“OSM”) Probable Hydrologic Consequences (“PHC”) Surface Mining Control and Reclamation Act (“SMCRA”) U.S. Fish and Wildlife Service (“FWS”)


INTRODUCTION

BHP Navajo Coal Company (“BNCC”) is authorized to conduct surface coal

mining operations at the Navajo Mine in northwest New Mexico under a “life-of-the-

mine” permit issued by the Department of the Interior’s Office of Surface Mining

Reclamation and Enforcement (“OSM”). 8-01-01-002264. OSM issued this permit in

1989, and BNCC has exercised its right of renewal at approximately five-year intervals,

most recently in 2010. See id.; 10-01-01-000003. Since issued, the permit has authorized

continued mining at a rate of approximately 7-9 million tons of coal per year within the

“life-of-operations permit area.” See 8-01-01-002264 to 265; 10-01-01-000018 (noting

2008 production rate). A part of the mine called Area IV North has been included in the

permit area since 1989. 8-01-01-002265. But a prerequisite to mining in that particular

area has been OSM’s approval of detailed mining and reclamation plans. Id.

In 2010, this Court addressed a challenge brought by two of the five petitioners

here to OSM’s 2005 decision to approve BNCC’s application to revise the life-of-the-

mine permit to include detailed mining and reclamation plans for 3,800 acres of Area IV

North. See Diné Citizens Against Ruining our Environment v. Klein, 747 F. Supp. 2d

1234, 1241-42 (D. Colo. 2010) (“Diné CARE I”). OSM had found that approval of the

application would have no significant impact on the environment based on a 14-page

environment assessment (“EA”). See id. at 1241; 8-01-01-002415 to 2428; 8-01-01-

002429. The agency thus declined to prepare an environmental impact statement


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(“EIS”), a more comprehensive environmental review document that the National

Environmental Policy Act (“NEPA”) requires agencies to prepare when a proposed major

federal action will significantly affect the human environment. See Diné CARE I, 747 F.

Supp. 2d at 1241, 1248-49. This Court held in Diné CARE I that OSM’s approval of

BNCC’s application violated NEPA. Id. at 1250-64. The Court provided the agency

with detailed instructions to follow on remand when reevaluating the application,

potential environmental impacts, and whether to prepare an EIS. Id.

Following the Court’s decision, BNCC asked OSM to put the 2005 application on

hold. 1-01-01-000001. BNCC submitted a new application, primarily seeking a revision

of the life-of-the-mine permit to include mining and reclamation plans for a much smaller

area of Area IV North (approximately 700 acres). Id. BNCC sought the permit revision

to ensure it could fully satisfy obligations to supply approximately 8 million tons of coal

per year to the Four Corners Power Plant (“FCPP”) under a contract that expires on

July 6, 2016. See id.

Paying careful attention to the instructions provided by the Court in Diné CARE I,

OSM solicited extensive public input on BNCC’s application and later on a draft EA. 1-

02-11-000031 to 33. In 2012, and again paying careful attention to the Court’s

instructions, OSM issued a comprehensive final EA (spanning well over 200 pages) that

analyzed, among other things: (1) existing environmental conditions in the area

surrounding the mine; (2) the environmental consequences of approving the permit


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revision application with conditions (“the Proposed Action”), measured against existing

environmental conditions; and (3) the incremental impact of the Proposed Action when

added to the impacts of other past, present, and reasonably foreseeable future actions. 1-

02-11-000001 to 250. Based on this EA, OSM found that the Proposed Action would not

have a significant impact on the environment, and the agency thus did not prepare an EIS.

1-02-10-000001 to 6. In March 2012, OSM approved BNCC’s application with

conditions. 1-02-10-000001.

On May 15, 2012, Diné Citizens Against Ruining our Environment and several

other petitioners (collectively, “the Petitioners”) filed this action challenging OSM’s

decision to approve the permit revision. Rec. Doc. 1. In their opening merits brief, the

Petitioners argue that the EA failed to comply with NEPA and that OSM’s conclusion

that the Proposed Action would not have a significant impact on the environment was

arbitrary and capricious. Rec. Doc. 46 at 23-59 (hereafter, “Br.”). The crux of the

Petitioners’ arguments is that OSM failed to adequately analyze and discuss in the EA the

environmental impacts associated with past placement (prior to 2008) of coal combustion

byproducts at the Navajo Mine1 and with the combustion of mined coal at the FCPP. Id.

The Petitioners persist in litigating this action even though the federal government

has announced that OSM and other federal agencies are working on a comprehensive EIS

to inform upcoming decisions on applications submitted by BNCC and other entities

1 Under the terms of the lease between the Navajo Nation and BNCC’s predecessor-in-interest, the placement of coal combustion byproducts at the mine was allowed in accordance with applicable federal and tribal law. 7-04-01-000073.


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seeking, among other things, renewal of the life-of-the-mine permit, issuance of a new

surface-mining permit, and land use authorizations by Interior’s Bureau of Indian Affairs

(“BIA”) necessary for the continued operation of the FCPP. Notice of Intent to Prepare

EIS, 77 Fed. Reg. 42,329, 42,329-32 (July 18, 2012); Notice to Reopen and Extend

Scoping Comment Period, 77 Fed. Reg. 62,258, 62,258-59 (Oct. 12, 2012). The

Petitioners also persist in litigating this case notwithstanding recent regulatory efforts of

the Environmental Protection Agency (“EPA”) and the State of New Mexico focusing on

air quality in the Four Corners area, power plant emissions in general, and FCPP

emissions in particular. See, e.g., 1-02-11-000229.

BACKGROUND

I. STATUTORY AND REGULATORY BACKGROUND

A. The Surface Mining Control and Reclamation Act

The Surface Mining Control and Reclamation Act (“SMCRA”) established a

nationwide program regulating surface coal mining that Congress intended to “strike a

balance between protection of the environment and agricultural productivity and the

Nation’s need for coal as an essential source of energy.” 30 U.S.C. § 1202(f).

Subchapter V of SMCRA addresses the control of environmental impacts from surface

coal mining operations. 30 U.S.C. §§ 1251-1279. For the protection of the environment,

Subchapter V prohibits surface coal mining without a permit. 30 U.S.C. § 1256(a).


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An application for a SMCRA permit must include a suite of information pertinent

to the mine, the applicant, and potential environmental impacts. See 30 U.S.C. § 1257.

This includes a determination of the probable hydrologic consequences (“PHC”) of the

surface coal mining operation “upon the quality and quantity of surface and ground water

under seasonal flow conditions for the proposed permit and adjacent areas.” 30 C.F.R.

§ 780.21(f); 30 U.S.C. § 1260(b)(3). A permit authorizing surface mining operations

must incorporate all applicable performance standards set forth in SMCRA, including 25

environmental protection performance standards. 30 U.S.C. §§ 1265(a), (b). One of

these performance standards requires an applicant to “minimize the disturbances to the

prevailing hydrologic balance at the mine-site and in associated offsite areas.” 30 U.S.C.

§ 1265(b)(10). The permitting authority determines whether this standard is met before

issuing a permit by preparing a “cumulative hydrologic impact assessment” (“CHIA”)

based on the PHC. See 30 C.F.R. § 780.21(g).

The maximum term of a SMCRA permit is five years. 30 U.S.C. § 1256(b). Once

issued, the permit carries with it a “right of successive renewal” with respect to areas

within the boundaries of the existing permit. 30 U.S.C. § 1256(d).

In accordance with SMCRA, most states have assumed primary responsibility to

regulate coal mining within their borders. OSM regulates surface coal mining operations

in states that have not assumed such authority and on Indian lands within all states,

including lands that are held in trust for tribes by the United States. See Federal Program


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for Indian Lands, 49 Fed. Reg. 38,462, 38,462 (Sept. 28, 1984); 30 C.F.R. § 750.1. In

making decisions relating to its regulatory responsibilities on Indian lands, OSM consults

with the BIA and the affected tribe “with respect to special requirements relating to the

protection of non-coal resources of the area affected by surface coal mining and

reclamation operations.” 30 C.F.R. § 750.6(a)(4). OSM also consults with Interior’s

Bureau of Land Management concerning “requirements relating to the development,

production and recovery of mineral resources on Indian lands.” 30 C.F.R. § 750.6(a)(5).

B. National Environmental Policy Act

The purpose of NEPA is to foster better decisionmaking and informed public

participation. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349

(1989). To that end, the statute does not mandate particular results, but simply

establishes procedural requirements for assessing the environmental impacts of an

agency’s decisions. Id. at 350. The Council on Environmental Quality (“CEQ”), an

agency created by NEPA within the Executive Office of the President, has promulgated

regulations that guide federal agencies’ compliance with the statute. 40 C.F.R.

§§ 1500.1-1508.28. These regulations are entitled to substantial deference. Robertson,

490 U.S. at 355.

NEPA requires federal agencies to prepare an environmental impact statement for

“major Federal actions significantly affecting the quality of the human environment.” 42

U.S.C. § 4332(2)(C). When it is not immediately apparent that an EIS is required, an


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agency may prepare an EA. W. Watersheds Project v. Bureau of Land Mgmt., 721 F.3d

1264, 1269 (10th Cir. 2013). An EA is a “concise public document” that briefly provides

sufficient evidence and analysis for determining the appropriate next step, including

“brief discussions” of the environmental impacts of the proposed action and alternatives.

40 C.F.R. § 1508.9. If an agency finds based on the EA that the proposed action will not

have a significant effect on the environment, it may move forward with the proposed

action. W. Watersheds Project, 721 F.3d at 1269. Otherwise, the agency prepares an

EIS. Id.

CEQ regulations encourage other agencies to adopt NEPA procedures by

regulation. See, e.g., Diné CARE I, 747 F. Supp. 2d at 1251 n.27 (quoting 40 C.F.R.

§ 1507.3(b)(2)(i)). The Department of the Interior has promulgated NEPA regulations

and guidelines applicable to OSM and other Interior agencies. See id. at 1251 (discussing

Interior’s “Department Manual”); 43 C.F.R. Part 46 (Interior’s NEPA regulations). Like

CEQ’s NEPA regulations, Interior’s regulations and guidelines are entitled to “substantial

deference.” Diné CARE I, 747 F. Supp. 2d at 1251.

C. The Endangered Species Act

The purpose of the Endangered Species Act (“ESA”) “is to prevent the extinction

of species by preserving and protecting the habitat upon which they depend from the

intrusive activities of humans.” Catron Cty Bd. of Comm’rs v. U.S. Fish & Wildlife Serv.,

75 F.3d 1429, 1437 (10th Cir. 1996); see 16 U.S.C. § 1531(b). The ESA thus prohibits


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the unauthorized taking of threatened or endangered species (“listed species”). 16 U.S.C.

§ 1538(a). If an entity will incidentally take listed species in the course of an otherwise

lawful activity, it must secure incidental take authorization from the U.S. Fish and

Wildlife Service (“FWS”). 16 U.S.C. § 1539(a)(1)(B).2

Section 7 of the ESA provides a mechanism by which federal agencies ensure

their actions do not jeopardize the existence of any listed species. See 16 U.S.C. § 1536.

A federal agency may engage in “informal consultation” with the FWS, or prepare a

biological assessment, to evaluate whether a proposed action is likely to adversely affect

listed species or their critical habitat. See 50 C.F.R. § 402.14(b)(1). If the agency

determines that the proposed action is not likely to adversely affect such species and

habitat, and the FWS concurs, the agency may move forward with the proposed action.

Id. The agency otherwise must engage in “formal consultation” with the FWS. 50

C.F.R. § 402.14(a), (b). The agency is required to provide to the FWS “the best scientific

and commercial data available or which can be obtained during the consultation.” 50

C.F.R. § 402.14(d). The process culminates with the FWS’s preparation of a “biological

opinion.” 50 C.F.R. § 402.14(h). If the FWS concludes in the biological opinion that the

proposed action is not likely to jeopardize a protected species, but will result in the

incidental “take” of individual members of the species, the FWS provides a statement that

prescribes terms to minimize the impact of the incidental take. See 16 U.S.C.

2 The National Oceanic and Atmospheric Administration has jurisdiction with respect to

certain species (none that are relevant here).


9

§ 1536(b)(4); 50 C.F.R. § 402.14(i).

D. The Clean Air Act

Congress enacted the Clean Air Act (“CAA”) “to protect and enhance the quality

of the Nation’s air resources so as to promote the public health and welfare and the

productive capacity of its population.” 42 U.S.C. § 7401(b)(1). To that end, the CAA

directs EPA to establish national ambient air quality standards to protect the public health

and welfare. 42 U.S.C. § 7409(a), (b). To date, EPA has established national ambient air

quality standards for nitrogen dioxide, ozone, particulate matter, and several other air

pollutants the agency has deemed harmful to public health and the environment. See,

e.g., National Ambient Air Quality Standards for Particulate Matter, 78 Fed. Reg. 3086,

3086 (Jan. 15, 2013) (imposing more stringent standards for particulate matter); National

Ambient Air Quality Standards for Ozone, 73 Fed. Reg. 16,436, 16,436 (Mar. 27, 2008)

(imposing more stringent standards for ozone); 1-02-11-000089-90.

Under the CAA’s program of “cooperative federalism,” states may develop and

submit to EPA for approval state implementation plans that determine and explain how

the state will meet ambient air quality standards and implement CAA programs with

other, more targeted, objectives. 42 U.S.C. § 7410(a). When a state fails to submit a

plan, or submits an inadequate one, EPA promulgates a federal implementation plan. 42

U.S.C § 7410(c)(1), (k). In addition, tribes may secure authorization from EPA to

exercise CAA regulatory authority on Indian lands, and EPA may exercise such authority


10

in the absence of tribal regulation. See Michigan v. EPA, 268 F.3d 1075, 1079 (D.C. Cir.

2001).

Under the CAA, EPA, states, and tribes address emissions from large sources of

pollution, including coal-burning power plants, through permit programs. Major sources

of pollution like power plants must secure operating permits that regulate emissions. See,

e.g., WildEarth Guardians v. EPA, 728 F.3d 1075, 1077-78 (10th Cir. 2013) (“Under

Title V of the Clean Air Act, a ‘major source’ of air pollution, such as the power station

at issue in this case, must obtain an operating permit from the applicable state agency.”).

In addition, under a CAA program known as “Prevention of Significant Deterioration,”

new large sources of pollution, or existing ones that undergo a physical or operational

change that is expected to increase a plant’s actual amount of annual pollution, are

subject to more stringent limitations on pollution. 42 U.S.C. § 7475(a)(1), (4).

There are also CAA regulatory programs that target particular air quality issues by

regulating large sources of pollution like coal burning power plants. In 1999, for

example, EPA issued a final rule outlining a regional haze program to address

impairment of visibility in Class I areas (including certain national parks). Regional

Haze Regulations, 64 Fed. Reg. 35,714, 35,714 (July 1, 1999); 40 C.F.R. § 81.400

(defining Class I areas). Regional haze “is visibility impairment that is produced by a

multitude of sources and activities which emit fine particles and their precursors and

which are located across a broad geographic area.” 64 Fed. Reg. at 35,715. EPA


11

concluded that all states contain sources that contribute to regional haze in a Class I area

and thus that all states must submit regional haze state implementation plans. Id. at

35,721; see also Ctr. for Energy & Econ. Dev. v. EPA, 398 F.3d 653, 654 (D.C. Cir.

2005). As another example, in February 2012, EPA promulgated standards that will

reduce mercury emissions and other air pollution from coal and oil-fired power plants.

National Emission Standards for Hazardous Air Pollutants, 77 Fed. Reg. 9304, 9304-06

(Feb. 16, 2012).

II. FACTUAL BACKGROUND

A. Overview of the Navajo Mine

In 1957, BNCC’s predecessor-in-interest leased 24,000 acres of land held in trust

by the United States for the Navajo Nation for the purpose of conducting surface coal

mining operations. 1-02-11-000019; 7-04-01-000001.3 As a result of a series of

amendments between 1957 and 1985, the lease and associated rights of way currently

include approximately 33,600 acres of land. See 1-02-11-000019. This land, the

“Navajo Mine,” is located in northwest New Mexico, south of the San Juan River. Id.

This area of the United States is known as “Four Corners.” Id. The lease is divided into

six administrative areas: Areas I, II, III, IV North, IV South, and V. Id.

3 From this point forward, this brief does not distinguish between BNCC and its predecessor-in-interest.


12

B. BNCC’s Coal Supply Contract

In 1960, BNCC negotiated a coal supply contract with the operator of the FCPP,

Arizona Public Service. 8-01-01-002264. The FCPP is adjacent to the north end of the

Navajo Mine. Id. Since 1963, coal mined from the Navajo Mine has been burned at the

FCPP. Id. BNCC’s contractual obligations require it to supply approximately 8 million

tons of coal to the FCPP annually. 1-02-11-000029. The contract currently in effect

between BNCC and the FCPP expires on July 16, 2016. Id.

C. The First SMCRA Permit for the Navajo Mine

In 1985, BNCC applied for a SMCRA permit authorizing continued mining. 8-01-

01-002264.4 In 1989, after preparing an EA and making a finding that granting the

permit would have no significant effect on the environment, OSM issued a SMCRA

permit, the first for the Navajo Mine. 1-02-11-000022; 8-01-01-002264; 8-01-01-

002295. The EA explained that coal production rates would vary under the permit from 7

to 9 million tons of coal per year. 8-01-01-002266. The EA also explained that the life-

of-operations permit area included Area IV North, but that mining in that area was

contingent on, among other things, OSM’s approval of detailed mining and reclamation

plans for that area. 8-01-01-002264 to 65.

4 This followed OSM’s development of the Indian lands program in 1984. 49 Fed. Reg. 38,462, 38,462 (Sept. 28, 1984).


13

D. Diné CARE I

Since 1989, the SMCRA permit has been renewed at approximately 5-year

intervals, with OSM relying on a categorical exclusion for NEPA compliance. See Diné

CARE I, 747 F. Supp. 2d 1234, 1250 (D. Colo. 2010) (finding moot NEPA challenge to

application of categorical exclusion); Ctr. for Biological Diversity v. Pizarchek, 858 F.

Supp. 2d 1221, 1224 (D. Colo. 2012) (dismissing ESA challenge to permit renewal); see

40 C.F.R. § 1508.4; 8-01-01-002413 (516 DM 13.5(B)(11)). In addition, on several

occasions OSM approved revisions to the permit that added additional land covered by

BNCC’s lease with the Navajo Nation to the life-of-operations permit area. OSM relied

on an EA for NEPA compliance in each such instance. See, e.g., 8-01-01-002296; 8-01-

01-002324.

In 2005, OSM approved a permit revision application that provided, among other

things, the detailed mining and reclamation plans for approximately 3,800 acres in Area

IV North. 8-01-01-002415 to 28. OSM did not prepare an EIS. Instead, it relied on a

14-page EA in concluding that approval of the application would have no significant

impact on the environment. Id.; 8-01-01-002429. In Diné CARE I, this Court found that

OSM had violated NEPA in approving the permit revision application. 747 F. Supp. 2d

at 1250-64.


14

First, this Court held that OSM had erroneously determined that the 2005 permit

revision application was one that does not normally require an EIS under NEPA

guidelines applicable to OSM. Id. at 1250-53 (discussing 516 DM 13.4(A)(4)).5 Second,

the Court held that OSM should have analyzed the impacts of a proposed relocation of

Burnham Road in the EA, in addition to the permit revision application. Id. at 1253-54.

The Court reasoned that the proposed Burnham Road relocation and proposed approval

of the permit revision application were “connected actions” for NEPA purposes and thus

should have been analyzed in a single environmental review document. See id.; see also

infra Argument Part I (discussing connected actions).

Third, the Court found that OSM had failed to consider a reasonable range of

alternatives in the EA because it had not explicitly analyzed the alternative of approving

the 2005 permit revision with conditions. Diné CARE I, 747 F. Supp. 2d at 1254-56.

Fourth, the Court held that OSM had adequately evaluated impacts on tribal members and

their rights. Id. at 1257-58. The Court also held, however, that OSM failed to adequately

consider and discuss the mitigation of impacts on scientific, cultural, and historical

resources in Area IV North. Id. at 1258-59.

Fifth, the Court addressed the petitioners’ claim that the EA failed to take a “hard

look” at the impact of placement of coal combustion byproducts at the Navajo Mine and

5 The guidelines provide that an EIS is normally required before OSM approves a mining

and reclamation plan that meets the following criteria: (1) the impacts of the mining are not adequately analyzed in a prior environmental document; (2) the area to be mined is 1280 acres or more, or the area of full annual production is 5 million tons or more; and (3) mining and reclamation will occur for 15 years or more. 8-01-01-002412 (516 DM 13.4(A)(4)).


15

the use of such residuals as mine fill. Id. at 1259-60. Because of the absence of the

complete permit revision application from the administrative record, the Court could not

evaluate whether OSM’s approval action authorized the use of coal combustion

byproducts in connection with reclamation. Id. at 1260. The Court directed OSM to

include a discussion of coal combustion byproducts “to the extent it is mentioned, if at

all, in the permit revision application” in any revised EA. Id.6

Sixth, the Court addressed the petitioners’ argument that OSM failed to provide

adequate public notice of the 2005 permit revision application before making its decision.

Id. at 1260-62. While the Court viewed the procedures used by OSM in addressing the

permit revision application as inadequate, the Court approved of the procedures used by

OSM in making information concerning a 2009 permit renewal decision available to the

public. Id. The Court explained that in connection with the permit renewal decision,

OSM had “tailored its public notice to account for the unique characteristics of the local

population most affected by actions at the Navajo Mine,” including by publishing

information in the Navajo Times (the tribal newspaper). Id. at 1262.

Finally, the Court rejected the petitioners’ claim that OSM should have prepared a

supplemental EA. Id. at 1262-63.

6 The Court also provided other specific instructions to OSM. See id. at 1250-64.


16

E. The Decision Challenged in This Action

After this Court issued its decision, the permit revision application approved by

OSM in 2005 was put on hold. 1-01-01-000001.7 BNCC submitted a new permit

revision application that provided, among other things, detailed mining and reclamation

plans for a much smaller area of Area IV North (approximately 700 acres, as compared

with 3,800 acres in the 2005 application) to satisfy its operational needs in terms of

quality and quantity of coal under its contract with APS, which expires July 6, 2016. See

id. With respect to coal combustion byproducts, the application stated as follows:

As of January 2008, BNCC has not received Coal Combustion Byproducts (CCB) from Four Corners Power Plant (FCPP) for placement in mined-out pits or ramps at Navajo Mine. BNCC does not intend to use CCB materials for reclamation within the Area IV North resource area subject to this application. Therefore, BNCC would request that OSM expressly not authorize the use or placement of CCB materials for reclamation or any other purpose in the portion of Area IV North to be permitted pursuant to this application.

1-01-01-000002.

Mindful of the Court’s instructions in Diné CARE I, OSM carefully analyzed the

application and its NEPA (and ESA) responsibilities. OSM (and BNCC), for example,

published notices in newspapers, including in the Navajo times, and arranged for radio

announcements in the Navajo language. 1-02-13-000001 to 23. OSM also held

workshops to inform the public about the permit revision application, which included a

translator fluent in English and Navajo. Id. In December 2012, after considering initial

7 This application was ultimately withdrawn by BNCC.


17

public input, OSM issued a draft EA and draft finding of no significant impact, as well as

a draft biological evaluation for ESA compliance purposes. 2-01-01-000439 to 900 (draft

EA). OSM made these draft documents available to the public. 1-02-13-000024 to 39.8

After carefully considering public comment, and the Court’s instructions in Diné

CARE I, OSM issued a comprehensive final EA, spanning well over 200 pages. 1-02-11-

000001 to 250. Chapter 1 of the EA discusses the project and regulatory background, as

well as the purpose and need of the project. 1-02-11-000018 to 33. The EA explains that

mining in Area IV North is necessary for BNCC to meet its coal supply obligations to the

FCPP through July 6, 2016. 1-02-11-00029. It also notes that while coal combustion

byproducts were placed in Area I and Area II at the Navajo Mine between 1971 and

January 2008, there were no plans for further placement of such byproducts in those or

any other area of the mine, including Area IV North. 1-02-11-000019 to 20.

Chapter 2 of the EA provides a description of OSM’s “Proposed Action”

(primarily authorization of mining in Area IV North) and alternatives. 1-02-11-000034

to 56.9 The EA explicitly considered approving the permit revision application with or

without special conditions. 1-02-11-000051. The EA also explained that if a permit

8 As the Petitioners have not claimed that any aspect of OSM’s public notice was inadequate, the Federal Respondents have only briefly reviewed here the extensive efforts of OSM and BNCC in soliciting public input on the permit revision application and the EA. 9 While the EA addresses proposed actions other than OSM’s proposed approval of the permit revision, including a proposed realignment of Burnham Road, the discussion below provides an overview of the portions of the EA most relevant to the issues raised in the Petitioners’ brief.


18

applicant demonstrates that it complies with all requirements of SMCRA and OSM’s

regulatory program, and OSM is able to make the findings mandated by SMCRA,

inclusion of special permit conditions is unnecessary. Id. Rather, the imposition of

special permit conditions must be in response to a failure of the applicant to satisfy an

applicable requirement of SMCRA or OSM’s regulations or otherwise be appropriate to

ensure compliance with such a requirement. Id.

Chapter 3 of the EA describes existing environmental conditions for resources

potentially affected by the Proposed Action and alternatives. 1-02-11-000057 to 148.

The following resources are described: geological resources, paleontological resources,

water resources, noise, visual resources, air quality, vegetation, wildlife, threatened and

endangered and sensitive species, socioeconomics, environmental justice, land use,

cultural resources, traffic and transportation, and health and safety. 1-02-11-000057.

The EA explains that the geographic scope of the discussion of each resource varies

depending upon the potential impacts on the resource. Id.

Chapter 3 briefly discusses water resources, and notes that additional information

is available in the PHC. 1-02-11-000061. The EA discusses certain groundwater

resources, including a brief discussion of water quality observed in the past at certain

groundwater monitoring wells. 1-02-11-000064 to 65. It notes that while water quality

in the alluvium of the Chaco and San Juan Rivers is unsuitable for drinking water, the

water quality is generally suitable for livestock watering. Id. In discussing surface water


19

resources, the EA explains that certain drainages are located in the project area (primarily

Area IV North) and ultimately flow into the Chaco River, which is a tributary of the San

Juan River. 1-02-11-000067; 1-02-11-000068 (map). It also explains that surface water

use in and adjacent to the project area is limited to livestock watering at ponds located

outside the active mining area, and provides further discussion of the relevant surface

waters. 1-02-11-000067-69; see 1-02-11-000161 (noting poor water quality).

The EA’s discussion of air quality in Chapter 3 considers an area extending out 50

kilometers from the Navajo Mine’s boundary (the “Air Quality Resource Area”). 1-02-

11-000087. The EA discusses EPA’s ambient air quality standards and further notes that

the Navajo Nation had enacted air pollution legislation and also intended to seek EPA

approval to exercise certain regulatory authorities under the CAA. 1-02-11-000089-91.

The EA discusses emissions from the FCPP and the San Juan Generating Station, another

large coal-burning power plant in the Four Corners area. 1-02-11-000094.

Chapter 3 of the EA also includes a discussion of air quality data from monitoring

stations maintained by the State of New Mexico within San Juan County. 1-02-11-

000095-97. The EA discusses data from the monitoring station within the Air Quality

Resource Area, explaining that levels of particulate matter, nitrogen dioxide, and ozone

remained below the applicable ambient air quality standards. 1-02-11-000097. The EA

notes that ozone levels at monitoring stations within San Juan County had been

increasing and thus would be watched closely. Id. The EA also discusses regional haze,


20

noting that EPA had proposed federal implementation plans to address emissions from

the FCPP and that New Mexico had adopted plans to address emissions from the San

Juan Generating Station. 1-02-11-000097 to 98.

Chapter 4 of the EA discusses the environmental consequences of the Proposed

Action and a no action alternative (declining to approve the permit revision application)

for each resource identified in Chapter 3. 1-02-11-000148 to 211. The EA explains that

the impact of the Proposed Action was measured against existing environmental

conditions. 1-02-11-000148.

The EA briefly discusses potential impacts of the Proposed Action on water

resources, including by explaining the methodology and modeling used by OSM for

assessing such impacts. 1-02-11-000151 to 152. It discusses impacts to groundwater and

surface water. 1-02-11-000152 to 161. Among other things, the EA concludes that there

would be little change in the quality of groundwater beyond the limits of the mine. 1-02-

11-000154. The EA also explains that no changes to surface water use were expected to

occur as a result of the Proposed Action and that under the alternative of approving the

application with conditions (additional water quality monitoring) impacts to surface

waters would be further reduced. 1-02-11-000161. The EA notes concerns about the

potential impacts of placement of coal combustion byproducts, but the EA explains that

no such placement was proposed as part of the Proposed Action. 1-02-11-000155.

In discussing certain air quality issues, the EA explains that the no action


21

alternative was not an appropriate baseline against which to compare predictions of air

quality effects, because existing air quality conditions reflect the effects of continued

mining at a rate of approximately 8.5 million tons per year. 1-02-11-000189. Under the

no action alternative, coal production would decrease to 4.9 to 7.4 million tons per year.

1-02-11-000189-90. The EA carefully analyzes potential emissions from mining in Area

IV North, applying CAA significance criteria. 1-02-11-000175 to 187. The EA

concludes that total emissions from the Proposed Action would be well below these

regulatory significance levels. 1-02-11-000187.

Chapter 4 includes a discussion of potential mercury emissions. It notes that, in

light of the mercury content of the mined coal and overburden material, the Proposed

Action (i.e., the proposed surface coal mining operations) would result in only three-

billionth of a gram of additional mercury deposited into the environment over an entire

year. 1-02-11-000182 to 183. The EA thus concludes that mercury deposition resulting

from the Proposed Action was not likely to create additional environmental effects in the

area of the San Juan River. 1-02-11-000183.

Chapter 5 of the EA addresses cumulative impacts, among other subjects. 1-02-

11-000212 to 240. It includes a discussion of past, present, and reasonably foreseeable

actions in the vicinity of the Proposed Action. See 1-02-11-000212 to 214. In discussing

water resources, the EA addresses both groundwater and surface water. 1-02-11-000219

to 226. With respect to past placement of coal combustion byproducts, the EA notes that


22

the past placement occurred in Areas I and II of the Navajo Mine. 1-02-11-000224. The

EA explains that there is no hydrologic connection between these areas and Area IV

North (or Area III). Id. The EA nonetheless discusses past placement further. Id. It

explains, among other things, that “there will be no overlap or cumulative impacts to the

Chaco River watershed associated with past mining and reclamation activities.” Id. The

EA concludes (based on the location at which such placement occurred, groundwater

flow direction, and other facts and analysis) that the past placement has no impacts on

groundwater or surface water resources potentially affected by the Proposed Action. 1-

02-11-000223 to 224.

In connection with a discussion of reasonably foreseeable developments, the EA

notes that EPA is tightening air quality regulations for ozone and regional haze for the

FCPP, San Juan Generating Station, and other pollution sources. 1-02-11-000214. The

EA explains that “air quality in the Four Corners region is anticipated to be better

protected with the implementation of tighter air emissions standards and [ambient air

quality standards].” 1-02-11-000216.

The EA further discusses air quality, noting that substantial reductions in

emissions of pollutants had occurred at the FCPP and San Juan Generating Station during

the past two years. 1-02-11-000229. Under a 2005 consent decree, the San Juan

Generating Station must reduce emissions of particulate matter, nitrogen oxides (which

are “precursors” to ozone formation), and mercury. Id. In 2007, EPA finalized an


23

implementation plan specifically for the FCPP that addressed nitrogen oxides and

particular matter. 1-02-11-000229.10 The EA also notes future reductions in emissions

of pollutants at the FCPP and San Juan Generating Station expected to occur following

implementation of EPA’s regional haze program, which could result in, among other

things, reduced energy production and associated emissions of pollutants at the FCPP.

Id. With respect to ozone, the EA notes that New Mexico enacted a statute to safeguard

against violations of the ambient air quality standards. 1-02-11-000230; see 1-02-11-

000216. The EA explains that while ambient levels of ozone are likely to approach the

ambient air quality standards in the next few years, this will trigger requirements for

reducing emissions of ozone precursors, including nitrogen oxides, under state law. 1-

02-11-000230; see 1-02-11-000216.

An appendix to the EA contains a biological evaluation prepared to address

potential impacts to federally-listed endangered and threatened species, as well as species

of concern identified by the Navajo Nation. 1-02-11-000380 to 473. The EA also

discusses ESA compliance. See, e.g., 1-02-11-000198. The biological evaluation

addresses all current and proposed mining activities at the Navajo Mine. 1-02-11-

000385. It notes that OSM has completed six ESA Section 7 informal consultations with

the FWS since the life-of-the-mine permit was issued in 1989, including several that

addressed the Colorado pikeminnow (formerly known as the Colorado squawfish), and

10 These limits were historically followed by the FCPP, but EPA’s action made the limits federally enforceable.


24

that there had been no new species listed or any critical habitat designated in San Juan

County, New Mexico, since that time. 1-02-11-000385-386. The biological evaluation

concludes, among other things, that the proposed action may effect, but is not likely to

adversely effect, the endangered southerwestern willow flycatcher. 1-02-11-000418; 1-

02-11-000198. The FWS concurred in this determination. 1-02-12-000019 to 20. The

biological evaluation also concludes that the proposed action will have no effect on other

federally-listed species (or Navajo Nation species of concern), including the Colorado

pikeminnow. 1-02-11-000413, 410 to 18.

In March 2012, OSM issued an updated CHIA for the Navajo Mine. See 5-01-01-

000001. While the EA focuses on resources potentially affected by the Proposed Action,

the updated CHIA addresses all areas that have been disturbed by mining to date, as well

as associated areas. 5-01-01-000010. The CHIA discusses surface water quality in the

Chaco River. It summarizes “baseline” water quality data collected in the late 1970s and

early 1980s from a monitoring station upstream of the mine. 5-01-01-000052. It notes

that no samples exceeded the Navajo Nation Environmental Protection Agency

(“NNEPA”) livestock watering criteria or secondary human contact criteria. Id. It notes,

however, that samples exceeded the NNEPA chronic aquatic and wildlife habitat criteria

and acute aquatic and wildlife criteria. Id. With respect to mercury, for example, 100%,

31%, and 100% of samples exceeded the chronic aquatic and wildlife habitat criteria, the

acute aquatic and wildlife criteria, and the NNEPA fish consumption standards,


25

respectively. Id. The CHIA concludes that, under the NNEPA standards, the observed

water quality is suitable for the designated post-mining use of the area for livestock

grazing. Id. The CHIA reports similar data from past monitoring (1969 to 1989) at a

location downstream of the mine, and similarly concludes that the observed water quality

is generally suitable for livestock grazing. 5-01-01-000081 to 82.11

Based on the EA, OSM found that the Proposed Action would not have a

significant impact on the environment. 1-02-10-000001 to 6. In March 2012, after the

CHIA was issued, OSM approved BNCC’s application (with conditions). 1-02-08-

000001 to 4.

STANDARD OF REVIEW

NEPA does not provide a private right of action or a standard for judicial review.

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882-83 (1990). This Court thus must review

the Petitioners’ claims under the judicial review provisions of the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 701-706. Under the APA, a court may set aside a

final agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A). A presumption of validity attaches

to the agency action. W. Watersheds Project v. Bureau of Land Mgmt., 721 F.3d 1264,

1273 (10th Cir. 2013). “[T]he ultimate standard of review is a narrow one. The court is

not empowered to substitute its judgment for that of the agency.” Citizens to Preserve

11 The CHIA also discusses past placement of coal combustion byproducts in connection with a section addressing “historic” mining. It concludes that constituents of these byproducts are not migrating. See 5-01-01-000085-86.


26

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

Further, “[a]n agency’s decision to issue a [finding of no significant impact] and

not prepare an EIS is a factual determination which implicates agency expertise.” Utah

Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir. 2002)

(internal quotation omitted). Deficiencies in an EA “that are mere ‘flyspecks’ and do not

defeat NEPA’s goals of informed decisionmaking and informed public comment will not

lead to reversal.” Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs,

702 F.3d 1156, 1165 (10th Cir. 2012) (internal quotation omitted). “Furthermore, even if

an agency violates the APA, its error does not require reversal unless a plaintiff

demonstrates prejudice resulting from the error.” Id. (internal quotation omitted).

ARGUMENT

I. The Proposed Action and Coal Combustion Are Not “Connected Actions.” The Petitioners argue that OSM unlawfully “segmented connected actions”

because it allegedly did not adequately consider and analyze in the EA both the Proposed

Action (approval of the permit revision application with conditions) and the combustion

of coal at the FCPP pursuant to BNCC’s coal supply contract. Br. at 23-37. However,

NEPA’s prohibition against segmentation is concerned with segmentation of proposed

actions and is not a vehicle for plaintiffs to compel agencies to analyze (or re-analyze)

continued activity and/or the effects of approvals or other decisions made years earlier.

Here, coal combustion is an existing and continuing activity, not a proposed action. The


27

Petitioners’ “connected actions” argument is therefore without merit.

A. NEPA’s Prohibition Against Segmentation Is Focused on Proposed Actions and Is Not Concerned with Continued Activity and Decisions Made Years Earlier.

Section 1502.4(a) of CEQ’s regulations sets forth NEPA’s general prohibition

against impermissible “segmentation.” It states that “[a]gencies shall make sure the

proposal which is the subject of an [EIS] is properly defined.” 40 C.F.R. § 1502.4(a).

The regulation further states that:

Agencies shall use the criteria for scope (1508.25) to determine which proposal(s) shall be the subject of a particular statement. Proposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement.

40 C.F.R. § 1502.4(a).

Section 1508.25, entitled “Scope,” identifies the three types of actions that may be

considered in an EIS: connected actions, cumulative actions, and similar actions.

Section 1508.25(a)(1) states that actions may be “[c]onnected actions, which means that

they are closely related and therefore should be discussed in the same impact statement.”

40 C.F.R. § 1508.25(a)(1). Actions are connected if they:

(i) Automatically trigger other actions which may require environmental impact statements. (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously. (iii) Are interdependent parts of a larger action and depend on the larger action for their justification.

Id.


28

Section 1508.25(a)(1)’s definition of “connected actions” thus merely provides

criteria that agencies apply in carrying out Section 1502.4(a)’s instruction that they

determine whether any other “proposals,” in addition to the proposed action, must be

evaluated in a single EIS. Section 1502.25(a)(1) does not impose requirements

independent of Section 1502.4(a). Accordingly, as district courts have uniformly held,

NEPA’s prohibition against segmentation, including the specific requirement that

agencies consider “connected actions” in a single EIS, is focused on proposed actions.

The prohibition against segmentation does not provide a vehicle for plaintiffs to compel

agencies to analyze or re-analyze the impacts of approvals or other decisions made by

federal agencies or private entities years earlier. Bullwinkel v. U.S. Dep’t of Energy, 899

F. Supp. 2d 712, 730 (W.D. Tenn. 2012) (“Analysis of multiple projects as connected

actions with cumulative impacts is required only for proposed actions pending

concurrently before an agency.” (internal quotation omitted)); Lone Tree Council v. U.S.

Army Corps of Eng’rs, No. 06-12042, 2007 WL 1520904, at *17 (E.D. Mich. May 24,

2007) (action that was no longer pending before agency could not be a “connected

action”); see Uranium Watch v. U.S. Forest Serv., No. 10-721, 2010 WL 3703807, at *5

(D. Utah 2010) (Sept. 14, 2010) (proposed new projects not connected to existing mine

operation); see also Webster v. U.S. Dep’t of Agric., No. 09-138, 2011 WL 8788223, at

*7 (N.D. W.Va. June 13, 2011) (“The potential future construction of a water treatment

plant is not a ‘connected action’—indeed, it is not an ‘action’ at all, since it is not a


29

proposed federal project.”).

These district court holdings find strong support in the reasoning of decisions of

the Ninth and Tenth Circuits. In Wilderness Workshop v. U.S. Bureau of Land

Management, 531 F.3d 1220 (10th Cir. 2008), for example, the Tenth Circuit explained

that the purpose of the “connected actions” requirement is “to prevent an agency from

dividing a project into multiple actions, each of which individually has an insignificant

environmental impact, but which collectively have a substantial impact.” Id. at 1228

(emphasis added) (internal quotation omitted). In determining whether particular projects

were “connected actions” for NEPA purposes, the Tenth Circuit reasoned that “‘projects,’

for the purposes of NEPA, are described as ‘proposed actions,’ or proposals in which

action is imminent.” Id. at 1229 (internal quotation omitted). In addition, in Pacific

Coast Federation of Fishermen’s Associations v. Blank, 693 F.3d 1084 (9th Cir. 2012),

the Ninth Circuit rejected an argument that Section 1502.4(a) and 1508.25(a)(1) impose

independent prohibitions against segmentation. Id. at 1097-98 (“whether an agency must

prepare a single EIS for more than one proposal turns on the criteria set forth in

§ 1508.25”).

Moreover, even when viewed in isolation (rather than in connection with Section

1502.4(a)), the text of Section 1508.25(a)(1) confirms that it does not apply to approvals

or other decisions issued years ago. Section 1508.25(a)(1), unlike Section 1502.4(a),

does not contain a prohibition against segmentation; rather, Section 1508.25(a)(1) merely


30

states that agencies “should” consider connected actions in an EIS. Compare 40 C.F.R.

§ 1502.4(a) (agencies “shall” evaluate certain proposals in a single EIS), with 40 C.F.R.

§ 1508.25(a)(1) (“should”). Also, the Petitioners claim that Section 1508.25(a)(1)(ii) is

“[m]ost relevant” to this case. Br. at 32. That Section, however, provides that actions are

connected if they “[c]annot or will not proceed unless other actions are taken previously

or simultaneously.” (emphasis added). Prior actions that have already been taken are not

mentioned.

In their brief, the Petitioners incorrectly presume that any “action” can be a

“connected action” for NEPA purposes. They ignore Section 1502.4(a) and do not

acknowledge the reasoning or holdings of any of the decisions discussed above. Several

of the cases cited by the Petitioners do not mention, let alone interpret, the general

prohibition against segmentation or the specific “connected actions” requirement. See

Davis v. Morton, 469 F.2d 593, 597 (10th Cir. 1972) (addressing whether federal agency

approval of leases on federal lands constitutes a major federal action); Port of Astoria v.

Hodel, 595 F.2d 467, 477 (9th Cir. 1979) (addressing whether agency had so federalized

the private construction of a new plant that it qualified as a major federal action); Save

Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1121 (9th Cir. 2005) (addressing whether

federal involvement in a project was sufficient to turn an essentially private action into a

federal one); Concerned Citizens, Inc. v. Strock, 563 F.3d 1033, 1042 (9th Cir. 2009)

(following holding of Save Our Sonoran); Sierra Club v. Hodel, 848 F.2d 1068, 1089-90


31

(10th Cir. 1988) (addressing whether there was a major federal action in light of agency

exercise of control and authority); Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy

Comm’n, 481 F.2d 1079, 1088-91 (D.C. Cir. 1973) (addressing whether NEPA requires

EIS for major federal research programs). Moreover, to the extent these cases discuss an

“action” in addition to the challenged federal agency action, the other action is a

proposed one, rather than an action or decision issued years earlier (or continuation of an

existing activity). See Davis, 469 F.2d at 594 (planned development); Port of Astoria,

595 F.2d at 477 (proposed construction of new plant); Save Our Sonran, 408 F.3d at 1118

(plan to construct an upscale gated residential community); Concerned Citizens, Inc., 563

F.3d at 1035 (proposed development); Sierra Club, 848 F.2d at 1089-90 (planned

improvement of road).

The other cases cited by the Petitioners involve proposed actions, rather than

approvals or other decisions issued years earlier (or continuation of an existing activity).

Thomas v. Peterson, 753 F.2d 754, 758-59 (9th Cir. 1985) (proposed logging road and

proposed timber sale); Alpine Lakes Prot. Soc’y v. U.S. Forest Serv., 838 F. Supp. 478,

479-80 (W.D. Wash. 1993) (proposed road easement and proposed timber projects);

Dickman v. City of Santa Fe, 724 F. Supp. 1341, 1342 (D.N.M. 1989) (“proposed

highway development project”). One decision cited by the Petitioners mentions a

proposed road easement, an existing mining operation, and a proposed expansion of

mining. Sierra Club v. U.S. Dep’t of Energy, 255 F. Supp. 2d 1177, 1180 (D. Colo.


32

2002). The Court stated at one point in the opinion that the proposed easement and the

“mine” were connected actions. Id. at 1183-84. The Court, however, did not consider

and address the argument that the prohibition against segmentation, and the “connected

actions” requirement in particular, focus on proposed actions and have no application to

approvals and other decisions made long ago. See id. In any event, other parts of the

opinion indicate that in referring to the “mine,” the Court was not addressing an existing

mining operation. The Court stated, for example, that “the mine is a ‘reasonably

foreseeable’ future action.” Id. at 1185. The Court also instructs the agency at the end of

the opinion to comply with NEPA in connection with any future road easement and the

“proposed” mine. Id. at 1190. The Court does not mention existing or continued mining

in its instructions. Id.

The Petitioners also rely on a CEQ regulation that defines “action” to include

continuing activities, thereby suggesting that continuing activity can qualify as a

“connected action.” See Br. at 32 (citing 40 C.F.R. § 1508.18). That argument is without

merit because the cited regulation merely defines “action” for the purpose of determining

whether an agency has taken a “major Federal action” that requires NEPA compliance.

See 40 C.F.R. § 1508.18. Applying this definition in connection with a “connected

actions” analysis would directly conflict with the Tenth Circuit’s reasoning in Wilderness

Workshop. See 531 F.3d at 1228-29 (referring exclusively to proposals). Also, even in

the limited context in which the cited definition of “action” is used, courts have held that


33

mere continued activity does not trigger NEPA requirements. See Greater Yellowstone

Coalition v. Tidwell, 572 F.3d 1115, 1125 (10th Cir. 2009) (addressing whether there was

a “continuing Federal action” requiring NEPA analysis).

For all of these reasons, NEPA’s prohibition against segmentation, and its specific

“connected actions” requirement, focus on proposed actions, and do not provide a vehicle

for plaintiffs to compel agencies to analyze or re-analyze continued activity or decisions

made by public or private entities years earlier.

B. Coal Combustion at the Navajo Mine Is an Existing and Continuing Activity, Not a Proposed Action.

In this case, the only action that the Petitioners allege to be “connected” to the

Proposed Action is the combustion of coal at the FCPP. Br. at 22-37. However, coal

mined from the Navajo Mine has been burned at the FCPP for over 50 years. See 8-01-

01-002264 (discussing initial negotiation of coal supply contract). Indeed, OSM

recognized in its 1989 EA that coal would be burned at a rate of 7-9 million tons per year

at the FCPP and that coal mined from Area IV North would be burned at the FCPP once

OSM approved detailed mining and reclamation plans. 8-01-01-002264 to 66. Thus,

coal combustion at a rate of approximately 7-9 million tons per year is a continuing

activity, not a proposed new activity. See also infra Part II.B.2 (explaining that the

Proposed Action maintains the status quo with respect to coal combustion). For these

reasons, the Petitioners’ argument that OSM “segmented connected actions” is without

merit.


34

C. Even If the Proposed Action and the Combustion of Coal Could Be Deemed “Connected Actions,” NEPA Would Not Require OSM to Further Consider Emissions from the FCPP.

The Petitioners’ “connected actions” argument also raises questions about the

potential usefulness to OSM of additional information concerning FCPP emissions. See

Br. at 23-37. The Federal Respondents address these contentions below in explaining

why, in light of NEPA’s “rule of reason” and other considerations, OSM’s treatment of

FCPP emissions in the EA fully complied with NEPA. The Federal Respondents’

arguments also provide an additional ground for rejecting the Petitioners’ “connected

actions” argument. See, e.g., infra Argument Part II.B.2 (no EIS required for actions that

maintain the status quo with respect to a particular activity and its impacts on the

environment). Indeed, the Ninth Circuit has held that the holdings of cases like Thomas

v. Peterson, 753 F.2d 754 (9th Cir. 1985), are inapplicable when an agency lacks

sufficient control and authority over an activity to warrant NEPA review. Wetlands

Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1117 (9th Cir. 2000)

(Thomas inapposite because “the Corps does not have independent jurisdiction over the

parts of the Phase I development that do not require the filling of wetlands”); California

Trout v. Schaefer, 58 F.3d 469, 474 (9th Cir. 1995) (Thomas did not involve “concurrent

yet independent jurisdiction of two federal agencies”).


35

II. OSM Complied with NEPA in Identifying and Analyzing the Indirect Effects of the Proposed Action.

The Petitioners argue that OSM unlawfully failed to adequately consider the

following purported “indirect impacts” of the Proposed Action: environmental impacts

resulting from past placement of coal combustion byproducts at the Navajo Mine; and

environmental impacts associated with the combustion of coal that would be mined from

Area IV North. Br. at 38-45. These arguments also have no merit.

A. Past Placement of Coal Combustion Byproducts at the Navajo Mine Was Not an Indirect Effect of the Proposed Action.

The environmental impacts of past placement of coal combustion byproducts at

the Navajo Mine were not indirect effects of the Proposed Action. CEQ regulations

define the term “direct effects” as effects that “are caused by the action and occur at the

same time and place.” 40 C.F.R. § 1508.8(a). Indirect effects, in turn, “are caused by the

action and are later in time or farther removed in distance, but are still reasonably

foreseeable.” 40 C.F.R. § 1508.8(b).

Here, BNCC expressly stated in its application that it was not requesting approval

from OSM to place coal combustion byproducts at the Navajo Mine or otherwise. 1-01-

01-000002. Further, as the EA explained, no coal combustion byproducts have been

placed at the Navajo Mine since January 2008 and there are no plans for such placement

in the future under the revised permit or otherwise. 1-02-11-000019 to 20. Under these

circumstances, the Proposed Action did not in any way “cause” placement of coal


36

combustion residuals at the Navajo Mine. See 40 C.F.R. § 1508.8(b); 1-02-16-000014

(OSM responses to comments) (“[T]here is no pending federal action pertaining to

approval or disapproval of [coal combustion byproducts] disposal, consequently [such]

disposal is not analyzed as a direct or indirect effect of the proposed action in the EA or

[biological evaluation].”); id. (explaining further that any effects of past placement are

considered part of the environmental baseline for ESA purposes). Furthermore, OSM

acted in full compliance with the Court’s instructions in Diné CARE I in declining to

discuss in detail past placement of coal combustion byproducts in the EA, given that

BNCC expressly asked OSM not to authorize such activity. Diné CARE I, 747 F. Supp.

2d at 1259-60; 1-01-01-000002. For all of these reasons, the Petitioners’ argument that

the effects of past placement of coal combustion byproducts were indirect effects of the

Proposed Action is entirely without merit.

B. NEPA Did Not Require OSM to Treat the Environmental Impacts of Coal Combustion as Indirect Effects of the Proposed Action.

The Petitioners also claim that OSM violated NEPA because, while OSM briefly

considered and discussed air quality and emissions from the FCPP in the EA, OSM did

not treat the environmental impacts of those emissions as indirect effects of the Proposed

Action and conduct a more comprehensive analysis of those effects. Br. at 38-45. It is

true that, but for OSM’s approval of the permit revision application, coal would not be

mined from Area IV North and the environmental impacts associated with the

combustion of the mined coal would not occur. However, the Petitioners’ argument is


37

without merit, primarily because the doctrine of proximate causation and NEPA’s rule of

reason place reasonable limits on agencies’ obligations to consider effects.

1. The Doctrine of Proximate Causation and NEPA’s Rule of Reason Place Reasonable Limits on the Obligations of Federal Agencies to Consider Environmental Impacts.

The scope of agencies’ NEPA inquiries “must remain manageable if NEPA’s goal

of ensuring a “fully informed and well considered decision” is to be accomplished.

Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 776 (1983)

(internal quotation omitted). “[A] ‘but for’ causal relationship is insufficient to make an

agency responsible for a particular effect under NEPA and the relevant regulations.”

Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767 (2004). Rather, NEPA “requires

agencies to analyze only those direct and indirect ‘effects’ that bear a ‘reasonably close

causal relationship’ to the proposed action.” Id. Courts thus draw “manageable line[s]

between those causal changes that may make an actor responsible for an effect and those

that do not.” Id. “Also, inherent in NEPA and its implementing regulations is a ‘rule of

reason,’ which ensures that agencies determine whether and to what extent to prepare an

EIS based on the usefulness of any new potential information to the decisionmaking

process.” Id. at 767; see 1-02-16-000010 (discussing rule of reason in response to

comments).

Relevant here, there are several kinds of reasonable and manageable lines that

agencies, with judicial approval, have drawn in carrying out NEPA responsibilities. First,


38

agencies need not prepare an EIS to evaluate environmental effects resulting from the

“mere continued operation of a facility.” Burbank Anti-Noise Group v. Goldschmidt, 623

F.2d 115, 116 (9th Cir. 1980) (citation omitted). That is, “[i]f the proposed action does

not significantly alter the status quo, it does not have a significant impact under NEPA.”

Tri-Valley CARES v. DOE, 671 F.3d 1113, 1125 (9th Cir. 2012); Nat’l Wildlife Fed’n v.

Espy, 45 F.3d 1337, 1343-44 (9th Cir. 1995) (noting that “agency action that does not

alter the status quo does not require an EIS”); Westside Prop. Owners v. Schlesinger, 597

F.2d 1214, 1217-18 (9th Cir. 1979); Comm. for Auto Responsibility v. Solomon, 603 F.2d

992, 1001-03 (D.C. Cir. 1979); Keep Yellowstone Nuclear Free v. U.S. Dep’t of Energy,

No. 07-36-E-BLW, 2007 WL 3237731, at *5 (D. Idaho Oct. 30, 2007) (an EIS is only

required when the agency action would expand the project or extend its original

lifetime).12

The case law in this area overlaps to some extent with case law addressing

whether agencies properly framed the “no-action alternative” in their environmental

review documents. The Tenth Circuit has held, for example, that “[i]n requiring

consideration of a no-action alternative, the Council on Environmental Quality intended

12 In Pit River Tribe v. United States Forest Service, 469 F.3d 768 (9th Cir. 2006), the Ninth Circuit held that re-extension of leases permitting production of geothermal energy did not constitute preservation of the status quo. Id. at 784. Other courts have recognized, however, that Pit River is distinguishable from other “continued use” scenarios because without affirmative re-extension of the lease at issue, the lessee would have retained no rights at all to the leased property and the extension provided an extra five years to develop the land and also the possibility of a further extension of up to 40 years. Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Dep’t of the Interior, 929 F. Supp. 2d 1039, 1054 (E.D. Cal. 2013).


39

that agencies compare the potential impacts of the proposed major federal action to the

known impacts of maintaining the status quo. . . . In other words, the current level of

activity is used as a benchmark.” Custer County Action Ass’n v. Garvey, 256 F.3d 1024,

1040 (10th Cir. 2001). The Court further reasoned that “[t]he requirement to consider a

no-action alternative does not provide Petitioners a vehicle in which to pursue allegations

that past [agency] actions received insufficient environmental analysis.” Id. Courts

recognize that once a project begins, “the ‘pre-project environment’ becomes a thing of

the past, thereby making evaluation of the project’s effect on pre-project resources

impossible.” Half Moon Bay Fishermans’ Marketing Ass’n v. Carlucci, 857 F.2d 505,

510 (9th Cir. 1988).

Second, an agency is not required to duplicate (or second guess) the work of

another federal agency, or a state agency, that has jurisdiction over a particular activity.

Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 196 (4th Cir. 2009)

(federal agency reasonably limited the scope of its NEPA analysis where discussion of

effects of activities over which it had no jurisdiction would have encroached upon the

regulatory authority of a state agency); California Trout v. Schaefer, 58 F.3d 469, 474

(9th Cir. 1995) (scope of agency review appropriately limited to effects of filling

wetlands where another agency had the responsibility of protecting fisheries, which had

been the subject of in-depth governmental studies); N. Carolina v. City of Virginia Beach,

951 F.2d 596, 604-05 (4th Cir. 1991) (NEPA assessment conducted by the Corps need


40

not be repeated by FERC); Sierra Club v. Kenna, No. 12-1193, 2013 WL 144251, at *14

(E.D. Cal. Jan. 11, 2013) (rule of reason favors conclusion that federal agency need not

analyze effects from a project subject to scrutiny by a state agency); see also; Sierra Club

v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1215 (11th Cir. 2002) (“Agencies are not

required to duplicate the work done by another federal agency which also has jurisdiction

over a project.”); Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105,

1117 (9th Cir. 2000) (agencies’ NEPA analysis for a permit need not include the effects

of the larger development project controlled by state regulations and subject to extensive

state environmental review); Sylvester v. U.S. Army Corps of Eng’rs, 884 F.2d 394, 401

(9th Cir. 1989) ( “We, finally, draw comfort from the fact that ordinary notions of

efficiency suggest a federal environmental review should not duplicate competently

performed state environmental analyses.”).

Third, the rule of reason counsels against the use of limited agency resources to

engage in extensive discussions of matters over which they have little or no control. New

Jersey Dep’t of Envtl. Prot. v. U.S. Nuclear Regulatory Comm’n, 561 F.3d 132, 140-43

(3d Cir. 2009) (“If NEPA required the NRC to analyze the potential consequences of an

airborne attack, the NRC would spend time and resources assessing security risks over

which it has little control and which would not likely aid its other assigned functions to

assure the safety and security of nuclear facilities.”); see City of Shoreacres v.

Waterworth, 420 F.3d 440, 452 (5th Cir. 2005) (“it is doubtful that an environmental


41

effect may be considered as proximately caused by the action of a particular federal

regulator if that effect is directly caused by the action of another government entity over

which the regulator has no control”); see also Wetlands Action Network, 222 F.3d at

1117; California Trout, 58 F.3d at 474. Fourth, even when an EA fails to consider

impacts of particular activities collectively, and such collective consideration would

normally be required, courts may uphold the EA under circumstances where the agency

has issued a notice of intent to address the activities at issue in an EIS. See Ctr. for Envtl.

Law & Policy v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1010-11 (9th Cir. 2011) (no

obligation to address in an EA cumulative impacts that will be the subject of an EIS).

All four of these reasonable and manageable lines are implicated here. While at

least some, if not each one, provide an independent ground for rejecting the Petitioners’

arguments concerning air quality and FCPP emissions, the Court can and should consider

them together, consistent with NEPA’s “rule of reason.”

2. The Proposed Approval of the Permit Revision Application Did Not Change the Status Quo with Regard to Coal Combustion at the FCPP.

In this case, the challenged agency decision was not a decision about continued

operation of the FCPP and did not change the status quo with respect to coal combustion

at the FCPP. As discussed, since it was issued in 1989, the SMCRA permit has

authorized mining at a rate of 7-9 million tons per year, with OSM recognizing that the

mined coal would be burned at the FCPP. See 8-01-01-002264 to 66. As OSM has

exercised its right to renew that permit at approximately 5-year intervals, coal has been


42

burned at the rate of 7-9 million tons per year at the FCPP for many years. See id.; 10-

01-01-000018 (noting 2008 production rate).

The 1989 SMCRA permit also explicitly authorized mining in Area IV North,

subject only to the condition that OSM approve detailed mining and reclamation plans for

that area. 8-01-01-002264 to 66. The challenged agency decision primarily approved

detailed mining and reclamation plans for about 700 acres in Area IV North, but it did not

change the status quo with respect to coal combustion. 1-02-16-000011 (OSM response

to comments) (“The Proposed Act will not result in any increase in annual production

from the Mine. Instead, the proposed mine plan revision only requests approval to

relocate a portion of that existing production to an adjacent area of the Mine.”); 1-02-16-

000012 (“The Proposed Action seeks approval to partially relocate existing mining

activities at the Navajo Mine so that relocated mining may occur in an adjacent area of

the Mine through July 2016.”); see also 1-02-16-000008 to 09; 1-02-11-000029; 8-01-01-

002264 to 66. NEPA therefore did not require OSM to treat the effects of FCPP

emissions as indirect effects of the Proposed Action and to further consider and discuss in

such effects in the EA. Supra Part II.B.1.

3. Further Consideration of Air Quality and the Effects of Emissions from the FCPP Would Have Merely Duplicated Completed and Ongoing Efforts of Other Governmental Agencies.

NEPA in any event would not have required OSM to further discuss and analyze

air quality and the effects of FCPP emissions because this would have merely duplicated

recent and ongoing efforts of EPA and the State of New Mexico. As discussed in the EA,


43

EPA and the State of New Mexico have undertaken substantial regulatory efforts in

recent years to improve air quality. See, e.g., 1-02-11-000229 to 232. As demonstrated

below, these efforts address the same air quality issues raised by the Petitioners in this

action.

As the FCPP is located on Indians lands, the provisions of the New Mexico state

implementation plan do not apply there. In 2007, EPA thus promulgated a “source-

specific” federal implementation plan for the FCPP. Source-Specific Federal

Implementation Plan for the FCPP, 72 Fed. Reg. 25,698, 25,698 (May 7, 2007). The

development of the proposed rule involved negotiations among a group of stakeholders

that included environmental organizations and the Navajo Nation. 72 Fed. Reg. at

25,698. When EPA published its proposed rule, many commenters “raised concerns

about poor air quality, deteriorating visibility and high rates of cancer, asthma, and other

respiratory problems in the Four Corners area.” Id. at 25,699-700. Some commenters

thus “urged” EPA “to further reduce emissions of [sulfur dioxide], [nitrogen oxides],

[particular matter], mercury, and toxic emissions.” Id. at 25,699. EPA explained in the

final rule that the 2007 federal implementation plan would fill an existing gap in

regulatory coverage and “contribute towards ensuring continued maintenance of the

[national ambient air quality standards] and towards protecting visibility.” Id. at 25,700.

EPA acknowledged “that additional regulatory actions by EPA may be necessary or

appropriate in the future to further protect air quality on the Navajo Reservation.” Id.


44

Since 2007, and informed by additional and extensive public input, EPA and the

State of New Mexico have continued to take steps to address air quality at the FCPP

and/of the broader Four Corners area. See 1-02-11-000097 to 98, 229-232. In 2010, for

example, EPA proposed a source-specific implementation plan to address emissions of

nitrogen oxides and particulate matter in connection with its regional haze program, as

these pollutants are “significant contributors to visibility impairment in the numerous

mandatory Class I Federal areas surrounding FCPP.” Proposed Source Specific Plan for

FCPP, 75 Fed. Reg. 64,221, 64,221 (Oct. 19, 2010). EPA subsequently published a

supplemental proposed rule finding that a alternative emissions control strategy would

achieve more progress than EPA’s original proposal “towards achieving visibility

improvements in the surrounding Class I areas.” Supplemental Proposed Source Specific

Plan for FCPP, 76 Fed. Reg. 10,530, 10,530 (Feb. 25, 2011).

EPA published a final rule for the FCPP addressing nitrogen oxides and visibility

in August 2012. Final Source Specific Plan for FCPP, 77 Fed. Reg. 51,620, 51,620

(Aug. 24, 2012). The final rule explains the extensive public outreach conducted by

EPA, and notes that the agency received some 13,000 written comments. Id. at 51,622.

EPA carefully addressed these comments, including requests for more stringent limits.

See, e.g., id. at 51,641 (addressing comments stating that the FCPP should be shutdown

immediately); id. at 51,636 (responding to comments concerning mercury pollution).

EPA also addressed comments concerning compliance deadlines. See id. at 51,639.


45

In addition to these efforts focusing specifically on the FCPP, EPA promulgated

standards in February 2012 that will reduce mercury emissions and other air pollution

from coal and oil-fired power plants. National Emission Standards, 77 Fed. Reg. 9304,

9304, 9407 (Feb. 16, 2012) (effective April 2012 and generally allowing up to three years

for compliance). This regulation summarizes peer review and also involved extensive

public input. See id. at 9317 (summary of peer review). This regulation, among other

things, discussed and analyzed concerns that power plants contribute mercury locally and

regionally, and also contribute to excess local deposition in areas near the power plants.

Id. at 9340-43. The regulation also responded to comments about compliance deadlines.

Id. at 9406-07.13

The State of New Mexico also has continued to address air quality, including

ozone, in the Four Corners area. See, e.g., 1-02-11-000216, 229-230. Ultimately, the

State of New Mexico retains flexibility to develop and maintain a state implementation

plan that ensures the ambient air quality standards are met (and that other CAA programs

are carried out). 42 U.S.C. § 7410(a)(2)(A). In addition to state efforts to solicit public

input on air quality regulations, revisions to the state implementation plan are approved

(or disapproved) by EPA through a notice-and-comment rulemaking. See, e.g., Approval

and Promulgation of Air Quality Implementation Plans; New Mexico, 78 Fed. Reg.

13 Courts have recognized that such regulations are the proximate cause of air emissions. Ctr. for Biological Diversity v. National Highway Traffic Safety Admin., 538 F.3d 1172, 1217 (9th Cir. 2008) (“EPA Clean Air Act rules permitting particular smokestack emissions are the proximate cause of those air pollutants.”).


46

40,966, 40,966 (July 9, 2013) (EPA approval of a portion of a submittal for New

Mexico’s state implementation plan).

While this is not a comprehensive discussion of all of the relevant EPA and state

regulatory efforts, the discussed rules demonstrate the extensive consideration, through

lengthy and complex rulemakings with extensive public involvement, that has been given

to precisely the same subjects that the Petitioners complain of in this action. Any further

discussion of air quality, and emissions from the FCPP, in OSM’s EA would have been

duplicative of the extensive efforts of EPA and the State of New Mexico to date.

Notably, prior to the enactment of a legislative NEPA exemption for CAA rules, courts

held that EPA rulemakings may be deemed the functional equivalent of NEPA

compliance. See Portland Cement Assoc. v. Ruckelshaus, 486 F.2d 375, 384 (D.C. Cir.

1973); 15 U.S.C. § 793(c)(1) (NEPA exemption for EPA actions taken under the CAA);

see also Envtl. Def. Fund, Inc. v. EPA, 489 F.2d 1247, 1257 (D.C. Cir. 1973). For all of

these reasons, NEPA did not require OSM to treat the effects of FCPP emissions as

indirect effects and to further consider and discuss in the EA potential impacts on air

quality. Supra Part II.B.1.

4. OSM Has Little, If Any, Authority to Address the Effects of Emissions from the FCPP.

OSM’s treatment of emissions from the FCPP also was appropriate in light of the

agency’s limited authority to address the effects of such emissions. NEPA analyses are

informed by the laws driving the federal action being reviewed. 1-02-16-000005; see


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Oregon Natural Desert Ass’n v. BLM, 625 F.3d 1092, 1109 (9th Cir. 2010). Subchapter

V of SMCRA provides for the protection of the environment, but like the rest of the

statute and OSM’s regulations, it is focused exclusively on the effects of surface coal

mining operations and does not regulate downstream uses of coal. See 30 U.S.C.

§§ 1251-1279; 30 C.F.R. Parts 750 & 773. Applicable NEPA guidelines require entities

seeking permits from OSM to submit the environmental information specified in OSM’s

SMCRA regulations. 8-01-01-002410 to 11 (516 DM 13.3); see also Diné CARE I, 747

F. Supp. 2d at 1251 (NEPA guidelines entitled to “substantial deference”). OSM’s

SMCRA regulations, in turn, only require the submission of information bearing on the

impacts of surface coal mining operations. There is no mention in the NEPA guidelines

or OSM’s SMCRA regulations of the submission of additional information, such as

information concerning the potential impacts associated with downstream uses of mined

coal. See 8-01-01-002410 to 11 (516 DM 13.3); 30 C.F.R. Parts 750 (Indian lands

program) & 773 (requirements for permitting).

Moreover, OSM may only reasonably deny a proposed revision to a SMCRA

permit if it cannot make the findings specified in its regulations. See 1-02-16-000005; 30

C.F.R. § 773.15. In addition, while OSM has authority to impose special permit

conditions, the imposition of such conditions must be in response to a failure of the

applicant to satisfy an applicable requirement of SMCRA or OSM’s regulations, or

otherwise be appropriate to ensure compliance with such a requirement. 1-02-11-


48

000051; see Peabody Coal Co. v. OSM, 123 I.B.L.A. 195, 207 (1992).14 More

fundamentally, neither SMCRA nor OSM’s regulations provide authority to OSM to

impose conditions on an entity other than the applicant for a permit, such as the operator

of a power plant that is not currently before OSM in any administrative proceeding. 30

U.S.C. §§ 1251-1279; 30 C.F.R. Parts 750 & 773.

In light of these circumstances, additional information about air quality and the

effects of FCPP emissions would have been of little, if any, use to OSM and to the public

in seeking to inform OSM’s decision on BNCC’s permit revision application. These

circumstances weigh heavily against imposing a requirement that OSM treat the effects

of FCPP emissions as indirect effects and give further consideration to air quality and the

effects of FCPP emissions. See Supra Part II.B.1.

5. OSM and Other Agencies Have Issued a Notice of Intent to Prepare an EIS that Addresses Continued Mining and Operation of the FCPP.

Finally, since OSM approved the permit revision application, OSM and other

federal agencies have announced that they will prepare a comprehensive EIS for the

Navajo Mine and continued operation of the FCPP. This EIS will inform upcoming

decisions on applications submitted by BNCC and other entities seeking, among other

things, renewal of the life-of-the-mine permit, issuance of a new permit to authorize

mining in additional areas covered by BNCC’s existing lease, and authorization of

14 Significantly, the Petitioners do not allege that OSM’s approval of the permit revision was contrary to SMCRA or otherwise challenge OSM’s interpretation of its responsibilities under the statute.


49

continued operation of the FCPP. Notice of Intent to Prepare EIS, 77 Fed. Reg. 42,329,

42,329-31 (July 18, 2012); Notice To Reopen and Extend Scoping Comment Period, 77

Fed. Reg. 62,258, 62,258 (Oct. 12, 2012). These circumstances also counsel against

finding a NEPA violation. See Supra Part II.B.1.

6. The Petitioners’ Arguments Do Not Address the Most Relevant Case Law and Pertinent Facts.

In making their argument that OSM should have treated the effects of FCPP

emissions as an indirect effect of the Proposed Action, the Petitioners disregard the most

relevant case law and pertinent facts. The Petitioners argue, for example, that coal

combustion was the “selling point” of the Proposed Action and that the impacts of coal

combustion thus necessarily were indirect effects of that action. Br. at 39. But the

“selling point” of the proposed action in the cases cited by the Petitioners was itself a

proposed new activity, not merely maintaining the status quo with respect to an existing

activity. See Sierra Club v. Sigler, 695 F.2d 957, 979 (5th Cir. 1983) (selling point was

bulk cargo activities that were not imminent); see also Sierra Club v. Marsh, 769 F.2d

868, 878 (1st Cir. 1985) (further development); City of Davis v. Coleman, 521 F.2d 661,

676-77 (9th Cir. 1975) (same); Chelsea Neighborhood Ass’n v. U.S. Postal Serv., 516

F.2d 378, 387-88 (2d Cir. 1975) (new housing). Likewise, none of the cited cases

involved efforts to compel an agency to conduct analyses that would be duplicative of

another federal agency’s or states’ completed and/or ongoing regulatory efforts.


50

The Petitioners also rely on a series of “foreseeable” energy development cases,

Br. at 40-41, but those cases are distinguishable for the same reasons as the “selling

point” cases. Mid-States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 532,

548 (8th Cir. 2003) (effects of increased supply of low-sulfur coal); Border Power Plant

Working Group v. Dep’t of Energy, 260 F. Supp. 2d 997, 1006 (S.D. Cal. 2003) (“new

power plants in Mexico”); N. Plains Resource Council, Inc. v. Surface Transp. Bd., 668

F.3d 1067, 1068 (9th Cir. 2011) (proposed coal mine). The Petitioners also are incorrect

in arguing that agency control “is only relevant to whether an agency must prepare a

NEPA analysis in the first place.” Br. at 43. See supra Part II.B.1.

In addition, the Petitioners make a series of incorrect assertions about OSM’s

authority to address the effects of emissions from the FCPP, including the assertion that

the ESA somehow provides OSM with such authority. Br. at 44-45. While OSM must

comply with the ESA, it does not administer the ESA. The FWS administers the ESA,

by issuing incidental take permits, consulting with federal action agencies, and otherwise.

See 16 U.S.C. § 1539(a)(1)(B). In any event, BNCC, and not the operator of the FCPP,

holds the SMCRA permit at issue and applied for the revision that led to the Proposed

Action; the operator of the FCPP was not seeking any authorization from OSM in the

administrative proceedings that led to the revision of the SMCRA permit.15

15 Elsewhere in their brief, the Petitioners also make arguments based on the Department

of the Interior’s trust responsibilities to tribes and 30 U.S.C. § 1260(b)(3). Br. at 36-37. OSM’s program for Indian lands, however, takes into account “the trust responsibilities the Department [of the Interior] has to tribes regarding lands subject to regulation by [SMCRA].” 49 Fed. Reg.


51

Finally, the draft biological opinion dated 2009 for the Desert Rock Energy

Project cannot bear the weight the Petitioners place on it. See Br. at 35, 45. That project

involved the BIA’s consideration of a proposed lease for a new, large coal burning power

plant (1500 megawatt) that would have existed in addition to the FCPP and other power

plants in the Four Corners area. 1-2-14-004053. While the ESA process reflected in the

draft was at the information gathering stage, the draft demonstrates that the FWS was

closely scrutinizing potential impacts to protected species, including the Colorado

pikeminnow. See, e.g., 1-02-14-001990 to 91. Some of the FWS’s concerns pertained to

the potential effects of an anticipated future increase in the deposition of mercury (in

2020); FWS predicted that the new power plant would account for about 0.1 percent of

the anticipated increase. 1-02-14-001965.

Importantly, like the cases cited by the Petitioners, the Desert Rock Energy Project

involved a new, additional activity in the area that would have had environmental impacts

not previously scrutinized by a federal or state agency. See 1-02-14-001877 to 78.

Moreover, with respect to the Navajo Mine, FWS has informally consulted with OSM

concerning the Colorado pikeminnow and other protected species on several occasions

since 1989. 1-02-11-000385 to 386. The Petitioners have not asserted any ESA claims

in this action, and while some of the Petitioners filed a lawsuit challenging on ESA

at 38,462. Also, 30 U.S.C. § 1260(b)(3) requires an assessment of “probable cumulative impact of all anticipated mining in the area on the hydrologic balance” and thus has nothing to do with air quality or power plant emissions. (emphasis added). As previously noted, the Petitioners have not argued that OSM violated SMCRA in approving the permit revision application.


52

grounds OSM’s decision to approve BNCC’s most recent application to renew the life-of-

the-mine permit, they ultimately agreed to dismiss that lawsuit. Motion to Dismiss, Ctr.

for Biological Diversity v. Pizarchek, No. 12-1200 (10th Cir. July 2, 2013). Finally, the

analyses in the draft 2009 biological opinion do not take account of more recent efforts of

EPA and the State of New Mexico to address emissions of pollutants, including mercury,

in the Four Corners area.

III. OSM’s Finding of No Significant Impact Was Not Arbitrary and Capricious.

The Petitioners challenge OSM’s finding of no significant impact, alleging that

OSM failed to adequately consider a number of criteria set forth in CEQ regulations. Br.

at 45-59. In determining whether the impacts of a proposed action are significant, which

would trigger the preparation of an EIS, an agency must consider both the context and

intensity of the impacts of the Proposed Action. 40 C.F.R. § 1508.27. Intensity requires

the evaluation of ten factors. 40 C.F.R. § 1508.27(b).

Here, the Petitioners’ arguments concerning the CEQ criteria largely rehash their

arguments that the Proposed Action and coal combustion are “connected actions” and

that the effects of past placement of coal combustion byproducts and of coal combustion

are indirect effects of the Proposed Action. Br. at 48-59.


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A. Context

OSM appropriately considered context in its finding of no significant impact,

reasoning that the Proposed Action is a site-specific action directly involving lands within

the life-of-operations permit area and that the Proposed Action did not have international,

national or regional importance. 1-02-10-000002. The Petitioners argue that OSM failed

to give appropriate consideration to “context” because it “inappropriately severed” the

mine expansion from coal combustion at the FCPP. Br. at 47-48. But as discussed, coal

combustion at the FCPP was not “connected” to the Proposed Action; nor was OSM

required to treat the effects of coal combustion as indirect effects of the Proposed Action.

Supra Parts I & II.B; see also infra Part III.B. The Petitioners’ arguments concerning

OSM’s consideration of “context” thus are without merit.

B. Intensity

In making its finding of no significant impact, OSM evaluated ten intensity

factors, consistent with CEQ regulations. 1-02-10-000002 to 06. The Petitioners claim

that OSM failed to properly consider many of them, Br. at 49-59, but their arguments

largely rehash arguments made previously in their brief.

1. Adverse Effects and Degree of Impacts to Public Health

In making its finding of no significant impact, OSM considered the adverse and

beneficial effects of the Proposed Action. 1-02-10-000003. OSM reasoned, for example,

that surface coal mining operations were expected to result in “limited negative


54

environmental and health impacts,” but that these impacts “would not rise above

acceptable norms.” Id. OSM also considered the degree of effect on public health. OSM

noted that the proposed operations “would not extend beyond July 2016 under the current

coal supply contract.” Id. It further reasoned that the effects on public health “would

remain virtually the same” because mining would continue under the Proposed Action.

Id. These conclusions in part reflect OSM’s approach in the EA of measuring the effects

of the Proposed Action against existing environmental conditions. 1-02-11-000148.

The Petitioners do not challenge OSM’s conclusions concerning the effects of

surface coal mining. Instead, they repeat their contentions that OSM failed to properly

consider and discuss in the EA the alleged impacts associated with coal combustion and

past placement of coal combustion byproducts. Br. at 48-53. The Petitioners’ arguments

concerning the first two “intensity” factors thus suffer from the same flaws as their

arguments concerning “context.” The Petitioners, for example, rely on certain studies of

the effects of past placement of coal combustion byproducts at the Navajo Mine, but any

effects of this past placement are not direct or indirect effects of the Proposed Action.

See supra Part II.A; infra note 17.

Furthermore, the Petitioners are incorrect in stating that OSM did not adequately

consider health impacts relating to ozone exposure in the EA. Br. at 50. Courts have

approved of the use of ambient air quality standards and CAA significance criteria to

evaluate the significance of proposed actions, as illustrated by a case cited by the


55

Petitioners. See Border Power Plant Working Group v. Dep’t of Energy, 260 F. Supp. 2d

997, 1021 (S.D. Cal. 2003) (“If ambient air quality standards are designed, as they are, to

protect human health, then a finding that the projects do not violate those standards

logically indicates that they will not significantly impact public health.”); see also

Taxpayers of Michigan Against Casinos v. Norton, 433 F.3d 852, 863 (D.C. Cir. 2006)

(“The CAA, and not NEPA, is the primary force guiding states and localities into

[national ambient air quality standard] compliance.”). In this case, OSM analyzed in the

EA whether ozone levels within the Air Quality Resource Area met the ambient air

quality standard for that pollutant. See 1-02-11-000089 to 97. It also discussed the fact

that the potential impacts of continued mining (and coal combustion) are largely reflected

in existing environmental conditions and that other governmental agencies were

implementing programs to address air quality issues, including ozone. See id.; 1-02-16-

000008 to 09 (OSM response to comments); see also supra Part II.B.3. The Petitioners’

arguments concerning OSM’s consideration of ozone-related health effects thus are

without merit.

In addition, the Petitioners do not accurately characterize information in the

administrative record. The Petitioners allege, for example, that the ambient air quality

standard for ozone was exceeded in San Juan County, citing a single document in the

administrative record. See Br. at 9, 48-49, 58 (citing 2-01-01-012410). But this event

occurred at the Navajo Lake station. 2-01-01-012410. The Navajo Lake station is


56

located over 55 miles (almost 90 kilometers) from the Navajo Mine, and thus well

outside the Air Quality Resource Area defined by OSM. See 1-02-11-000096. The

Petitioners have not challenged the scope of the Air Quality Resource Area, and any

challenge would have been futile. See San Juan Citizens Alliance v. Stiles, 654 F.3d

1038, 1057 (10th Cir. 2011) (“the boundaries of the region to be analyzed involved

technical and scientific judgments within the Federal Defendants’ area of expertise, and

their conclusion regarding which Class I sites to include in the analysis is one to which

we defer”).16

2. Unique Geographic Characteristics

In making its finding of no significant impact, OSM also considered unique

geographic characteristics. 1-02-10-000003 to 04. OSM reasoned that there are “no park

lands, prime farmlands or wild and scenic rivers in the project area” (i.e., the location of

surface coal mining operations). 1-02-10-000003. OSM also carefully considered

potential impacts to cultural resources. 1-02-10-0000004.

Again, the Petitioners do not challenge OSM’s reasoning or conclusions. Rather,

they simply reiterate their arguments concerning OSM’s treatment of the effects of coal

combustion in the EA. See Br. at 54. These arguments are without merit. Supra Part

16 The Petitioners’ reliance on the Navajo Lake station data without disclosing the

distance to the mine is just one example of many misleading statements about the record. The Federal Respondents have not sought to correct all of those misleading statements in this brief. Elsewhere in their brief, for example, the Petitioners allege exceedances of the standard for “nitrogen oxides,” Br. at 58, but there is no ambient air quality standard for nitrogen oxides. Nor does the cited information indicate that the ambient air quality standard for nitrogen dioxide (for which there is a standard) was exceeded. See 2-01-01-12410.


57

II.B.

3. Alleged Controversy and Uncertainty

Under Interior’s NEPA regulations, controversy “refers to circumstances where a

substantial dispute exists as to the environmental consequences of the proposed action

and does not refer to the existence of opposition to a proposed action, the effect of which

is relatively undisputed.” 43 C.F.R. § 46.30. Likewise, the Tenth Circuit has explained

that “[c]ontroversy is only one of ten factors [an agency] must consider when deciding

whether to prepare an EIS” and that “[c]ontroversy in this context does not mean

opposition to a project, but rather ‘a substantial dispute as to the size, nature, or effect of

the action.’” Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702

F.3d 1156, 1181 (10th Cir. 2012).

In making its finding of no significant impact, OSM considered the degree to

which the direct and indirect effects of the Proposed Action were likely to be highly

controversial or uncertain. 1-02-10-000004. OSM noted, for example, that substantial

public outreach was conducted prior to the Proposed Action, that the EA presented a

summary of comments, and that specific public concerns were responded to throughout

the document. 1-02-10-000004; see 01-02-11-000031 to 33. Comments varied, with

some expressing support for, and others expressing opposition to, the Proposed Action.

01-02-11-000031 to 33. OSM concluded based on the EA that the effects of the

Proposed Action were not highly controversial or uncertain. 1-02-10-000004.


58

The Petitioners disagree with OSM’s conclusions. Br. at 55. But with respect to

mining, the Petitioners rely only on opposition to the Proposed Action, and do not specify

which effects they are referring to, let alone demonstrate that those effects are highly

controversial or uncertain. See id. The Petitioners thus fail to demonstrate the existence

of any controversy or uncertainty concerning the effects of the proposed surface coal

mining operations. See 43 C.F.R. § 46.30; Hillsdale Envtl. Loss Prevention, Inc., 702

F.3d at 1181 (“Even if 90% of the comments to the environmental assessment were

negative, this merely demonstrates public opposition, not a substantial dispute about the

‘size, nature, or effect’ of the intermodal facility.”).

With respect to past placement of coal combustion residuals, the Petitioners rely

on several studies in the administrative record in attempting to demonstrate the existence

of controversy and uncertainty. See Br. at 55-57. But the past placement is not a direct

or indirect effect of the Proposed Action. See supra Part II.A; see also supra Part II.B

(NEPA did not require OSM to treat coal combustion as an indirect effect of the

Proposed Action); supra Part II.B.3 (discussing regulatory efforts of EPA and the State of

New Mexico). The studies thus do not support the Petitioners’ contentions. See Br. at

55-57.

In any event, the Petitioners’ arguments concerning past placement of coal

combustion byproducts rely heavily on water quality data for the Chaco River that is set

forth in the updated CHIA. See, e.g., Br. at 55-57. The Petitioners note that the EA does


59

not discuss this data, and focus in particular on mercury data. See id. However, the data

from the CHIA cited by the Petitioners is baseline data from a sampling point located

upstream, not downstream, of the Navajo Mine. Compare Br. at 55 (“downstream”),

with 5-01-01-000052 (noting that sample point was upstream of the mine). The

Petitioners also do not acknowledge the CHIA’s conclusion that notwithstanding the

concentrations of mercury reflected in the baseline water quality, the designated post-

mining use of the area for livestock grazing is appropriate. 5-01-01-000052; see 5-01-01-

000081 to 82 (same conclusion with respect to data collected downstream of the Navajo

Mine).

Moreover, while the EA focuses on resources potentially affected by the Proposed

Action, the updated CHIA addresses all areas that have been disturbed by mining to date,

as well as associated areas. 5-01-01-00010. That the EA does not cover the same ground

as the updated CHIA thus is not remarkable. In any event, the EA contains substantial

discussions of the potential impacts of the Proposed Action to water quality resources.

See, e.g., 1-02-11-000067 to 69, 151-61. And again, to the extent the Petitioners rely on

alleged impacts from past placement of coal combustion byproducts at the mine, such

impacts were not direct or indirect impacts of the Proposed Action. Supra Part II.A.17

17 Earlier in their brief, the Petitioners appear to claim that OSM did not properly

consider past placement of coal combustion byproducts in connection with its cumulative effects analysis in the EA. Br. at 49. But the Petitioners do not challenge OSM’s conclusion that there were no impacts from past placement of coal combustion byproducts that overlap with impacts of the Proposed Action. See 1-02-11-000223 to 24; see 1-02-16-000014 (constituents not migrating). Such a challenge would have been futile in any event. The Supreme Court has held


60

4. Alleged Harm to Protected Species and Threatened Violations of Environmental Laws Finally, in making its finding of no significant impact, OSM considered potential

harm to protected species and whether there were threatened violations of environmental

laws. 1-02-10-000005 to 06. OSM explained that it had engaged in several

consultations with the FWS since it issued the life-of-the-mine permit in 1989. 1-02-10-

000005. It also noted that the Navajo Nation Department of Fish and Wildlife and the

Navajo Nation Natural Heritage Program also had evaluated potential impacts to Navajo

Nation protected species with respect to all federal actions at the mine. 1-02-10-

000005.18 OSM also noted its finding, with FWS concurrence, that the proposed action

may affect, but is not likely to adversely affect, the endangered southerwestern willow

flycatcher. 1-02-10-00005; 1-02-11-000418; 1-02-11-000198; see 1-02-12-000019 to 20.

In addition, OSM noted its finding that the Proposed Action will have no effect on other

federally-listed species (or Navajo Nation species of concern), including the Colorado

pikeminnow. 1-02-10-00005; 1-02-11-000418; 1-02-11-000198. Finally, OSM

explained that “[a]ll federal, state, and tribal agencies with an interest in the proposed

that the “determination of the extent and effect of [cumulative environmental impacts], and particularly identification of the geographic area within which they may occur, is a task assigned to the special competency of the appropriate agencies.” Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976); see Kentucky Riverkeeper, Inc. v. Rowlette, 714 F.3d 402, 410 (6th Cir. 2013) (“Generally, agencies can conduct an adequate cumulative effects analysis by focusing on the current aggregate effects of past actions without delving into the historical details of individual past actions.”).

18 The Petitioners cite a document in the administrative record that demonstrates that the

Navajo Nation, like OSM, was taking a hard look at potential impacts. Br. at 56.


61

action were properly notified of and given appropriate comment time to respond” and

that “[t]he selected alternative does not threaten a violation of any federal, state, or tribal

environmental protection law.” 1-02-10-000006.

Again, the Petitioners do not discuss OSM’s reasoning and findings concerning

threats to protected species and potential violations of environmental laws. Instead, they

merely rehash arguments presented elsewhere in their brief. Br. at 55-58. The

Petitioners, for example, focus on the Desert Rock Energy Project, but as explained, that

project involved an analysis of the construction of a new, large power plant and also does

not support the Petitioners’ contentions for many other reasons. Supra Part II.B.6.

Notably, nowhere in their brief do the Petitioners acknowledge that OSM determined,

based on the mercury content of the mined coal and overburden material, that the

Proposed Action (i.e., the proposed surface coal mining operations) would result in only

three-billionth of a gram of additional mercury deposited into the environment over an

entire year. 1-02-11-000182 to 183.

For all of these reasons, OSM’s finding of no significant impact fully complied

with NEPA and was not arbitrary and capricious. See id.


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CONCLUSION

In light of the foregoing, the Court should conclude that OSM fully complied with

NEPA in approving the permit revision application.

Dated: November 12, 2013 Respectfully submitted,

ROBERT DREHER Acting Assistant Attorney General

/s/ Peter J. McVeigh Peter McVeigh U.S. Department of Justice Environment and Nat. Res. Division Mailing Address: P.O. Box 7415 Ben Franklin Station Washington, DC 20044-7415 Street Address: 950 Pennsylvania Ave., N.W. Robert F. Kennedy Bldg., Rm. 2630 Washington, DC 20530 Telephone: (202) 514-4642 Fax: (202) 514-4231 [email protected] Attorney for Federal Respondents


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CERTIFICATE OF SERVICE I hereby certify that on November 12, 2013, I electronically filed the foregoing

with the Clerk of Court using the ECF system, which will send notification of such filing

to the following e-mail addresses:

Shiloh Silvan Hernandez: [email protected]

Brian Leland Lewis: [email protected]

Megan McCrea Anderson O’Reilly: [email protected]

Erik Schlenker-Goodrich: [email protected]

Walter E. Stern, III: [email protected], [email protected]

Kyle James Tisdel: [email protected]

James Taylor Banks: [email protected]

s/ Peter J. McVeigh Peter J. McVeigh


SAN JUAN CITIZENS ALLIANCE; SIERRA CLUB; CENTER FOR ... · Civil Action No. 1:12-cv-1275-JLK DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT; SAN JUAN CITIZENS ALLIANCE; SIERRA CLUB;

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