The court in Wildearth Guardians v. Salazar2 held that plaintiff environmental organizations lacked standing to challenge a decision by the Bureau of Land Management (BLM) not to recertify the Powder River Basin as a “coal production region”. Wildearth was yet another case brought in an attempt to force the BLM to alter its management decisions concerning leasing of federal coal in Wyoming.3 Wyoming continues to produce more coal (438.5 million tons in 2011) than any other state.
The Mineral Leasing Act delegated to the Secretary of Interior the management of federal coal leasing.4 The Secretary enacted regulations which allow coal leasing through the designation of regional coal production areas, or, if in a non-designated area, upon lease by application.5 The BLM decertified the Powder River Basin Coal Production Region in 1990, so the area defaulted to site-specific leases for designated tracts upon applications by interested coal producers.
Although all BLM mineral leasing actions are subject to compliance with National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.§ 4321, et seq., the plaintiffs asserted that only the regional coal approach would adequately analyze and evaluate decisions considering national energy needs, potential economic and social effects of coal leasing and the alleged environmental impacts, particularly potential climate changes. The plaintiffs sought to force BLM rulemaking to recertifying the area.
BLM’s rejection of the plaintiffs’ petition, however, was found insufficient to support their standing in Wildearth. The plaintiffs argued three theories of standing: (1) procedural standing; (2) informational standing; and (3) substantive standing.
The court found no procedural standing, because BLM satisfied the mandated procedural requirements prior to the denial of the plaintiffs’ petition. Informational standing involves a showing that a statute requires the agency to disclose information and the plaintiffs must provide a credible claim that the information would be helpful to them – but, the plaintiffs failed to cite a statutory right to information in this case. The plaintiffs’ claim of substantive standing had been based on allegations that members of the groups had “reasonable concerns that the climate and other environmental impacts of coal mining under the leasing-by-application process will harm their aesthetic and recreational interests in the Powder River Basin and its wildlife.” While it is well established that potential harm to such interests may constitute an injury sufficient to confer standing, a nexus between the harm and agency action must be demonstrated.
The plaintiffs argued that their injuries would be redressed by recertification because the BLM “could set a ceiling on coal leasing” and there could be an overall reduction in coal production, thereby reducing the adverse environmental impacts.6 However, the court found that “the Plaintiffs’ argument falters.” The relief sought – recertification – would not necessarily lead to reduced coal production and diminished environmental impacts, because countless independent actions by BLM and third parties would intervene between recertification and coal production. The court noted that the plaintiffs simply failed to show that their alleged injuries could be redressed by a favorable decision, as their “theory of redressability depends on ‘a lengthy chain of conjecture,’ that piles ‘speculation upon hypothetical upon speculation.’”
This case raises the specter of when during the project approval process – rulemaking, management plans, offers to lease and lease decisions – is the connection between the agency actions and nongovernmental organizations’ (NGO’s) claim sufficiently linked to warrant the NGO’s standing to appeal the decision.
2 Wildearth Guardians v. Salazar, No. 11-00670, 2012 U.S. Dist. LEXIS 65411.
3 In a prior related case, the same plaintiffs unsuccessfully challenged a coal lease-by-application decision on the theory that the BLM was required to recertify the region because the coal market conditions had improved. Wildearth Guardians v. Salazar, 783 F. Supp. 2d 61 (D.D.C. 2011).
4 30 U.S.C. § 201(a)(1).
5 43 C.F.R. pt. 3420
6 Id. at *29.