Conservation group uses litigation to influence environmental enforcement

Patrick Kelly
On May 8, Federal District Judge R. Brooke Jackson ruled that mining plans for South Taylor Pit at Colowyo Mine did not meet requirements set out in the National Environmental Policy Act and ordered the Office of Surface Mining Reclamation and Enforcement to complete a new environmental analysis within 120 days.
Noelle Leavitt Riley

WildEarth Guardians, an environmental advocacy group known for aggressive litigation, is making waves in the sagebrush sea.

Through a series of federal lawsuits, Guardians is reshaping the way the federal government enforces environmental laws.

The most recent example is a claim brought against the Department of the Interior’s Office of Surface Mining, Enforcement and Reclamation regarding the approval of plans to mine federal coal at two locations in Northwest Colorado.

On May 8, a federal judge ruled against the Secretary of the Interior Sally Jewell, stating that the environmental analyses for operations at Colowyo and Trapper mines did not meet standards established in the National Environmental Policy Act.

The ruling ordered the Office of Surface Mining, Reclamation and Enforcement to complete a new analysis for Colowyo within 120 days and issue a recommendation to Jewell concerning continuation of mining.

“That is a blindingly fast timeline,” said Chris Holmes, public affairs specialist for OSMRE. “Doing an environmental assessment, especially looking at the things that the judge has asked us to take a hard look at, is a tough road.”

As a part of his opinion, federal Judge R. Brooke Jackson set precedent by stating that the effects of coal combustion must be considered in environmental analyses for proposed coal mining operations. Although NEPA states that direct and indirect impacts on the environment must be considered before development on federal land, coal combustion has historically been absent from the equation.

Regardless of potential hurdles, OSMRE is committed to completing the revamped analysis within the time frame.

“The Office of Surface Mining Reclamation and Enforcement takes our NEPA responsibilities very seriously, including robust public participation. We will make every effort to comply with the court’s 120-day deadline. We are reviewing the ruling to address the deficiencies found by the court on these permits that were issued in 2007 and 2009,” Holmes wrote in an email.

Public participation will begin with a meeting hosted by OSMRE from 4 to 8 p.m. on June 10 at Moffat County Fairgrounds.

Tri-State Generation and Transmission Association, the company that owns Colowyo, will be hosting a meeting from 6 to 8 p.m. June 3 at Moffat County High School’s auditorium.

As an entity with significant interest in the claim brought by Guardians, TriState intervened in the case. Its participation in the litigation continued on Friday when it announced an appeal of the judge’s ruling and requested a stay pending appeal.

“The request for a stay asks for operations at the mine to continue until the appeals process is concluded,” Lee Boughley, senior manager of corporate communications and public affairs for TriState, wrote in a press release.

In the press release, Boughley said that TriState believes the judge’s ruling against OSMRE is in error.

WildEarth Guardians is also a main character in the story of the greater sage grouse.

In 2011, Guardians filed a claim in federal court asking the court to order the U.S. Fish and Wildlife Service to make a decision on the status of 251 potentially endangered species, including the greater sage grouse.

Guardians received a favorable settlement and Fish and Wildlife agreed to evaluate 200 out of the 251 species by Sept. 30 of this year.

“The settlement agreement is often criticized, but it really just forced the government to make up its mind,” said Jay Tutchton, lead counsel for Guardians on this case.

WildEarth Guardians’ persistent litigation has not gone without notice.

Americans for Prosperity Foundation funded a study to analyze the impacts of Guardians’ litigation on local communities. It was released in March 2012.

The study was designed and preformed by Ryan Yonk, Ph.D., Department of Political Science and Criminal Justice at Southern Utah University and Randy Simmons, Ph.D., Department of Economics and Finance at Utah State University.

“What our study found was a negative impact on household income (in) places where WildEarth Guardians are active,” Yonk said.

Yonk said household income is $2,500 less in areas where WildEarth Guardians conduct “litigation for the wild.”

“This approach is successful in meeting their own goals, but it comes a cost to local communities,” he said.

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