Federal judge hears arguments in coal mining case | CraigDailyPress.com

Federal judge hears arguments in coal mining case

Patrick Kelly
South Taylor Pit at Colowyo mine. WildEarth Guardians successfully argued in federal court that the mining plan for the development of this pit was insufficient and should not have been approved by the Secretary of the Interior.
Patrick Kelly

On Friday, a federal district court judge in Denver will hear arguments in a lawsuit alleging the U.S. Department of Interior’s Office of Surface Mining, Reclamation and Enforcement failed to follow federal law when it approved mining plans for two local mines, Colowyo and Trapper.

If the lawsuit is successful, the court could halt mining operations until the Office of Surface Mining complies with federal law. Both mines provide coal for Craig Station, the second largest coal-fired power plant in Colorado.

The claim was brought by WildEarth Guardians, an environmental advocacy group. Guardians’ suit alleges the Office of Surface Mining did not follow environmental analysis procedures established in the National Environmental Policy Act (NEPA) when it approved the mining plans.

Drew Kramer, public affairs manager for Tri-State Generation and Transmission —a Westminster-based company that owns Colowyo and operates Craig Station — said the environmental analysis regarding Colowyo was adequate and fell in line with NEPA requirements.

According to the brief filed by Guardians, “(Office of Surface Mining) failed to ensure that the public was appropriately involved in the approvals of mining plans and failed to take a ‘hard look’ at potentially significant environmental impacts… from the expansion of coal mining at Colowyo and Trapper.”

The brief argues that the Office of Surface Mining relied on outdated or incomplete environmental analyses.

Although Guardians filed the suit against the Office of Surface Mining, Trapper Mining, Inc. and Tri-State have intervened in the lawsuit on behalf of the Office of Surface Mining.

In a press release, Tri-State said it “believes WildEarth Guardians’ arguments are without merit” and it “is confident it has a strong defense and the correct legal position in the case.” Trapper echoed its confidence in the soundness of the Office of Surface Mining’s legal position in a similar press release.

“The most favorable outcome would be a ruling in favor of (the Office of Surface Mining). If that does not occur, there are numerous other legal and operational options the court could impose that would allow the mine to continue to operate,” stated Trapper’s press release. “The worst case scenario is that the judge rules in favor of (the WildEarth Guardians) and grants the relief that they are seeking. This could result in an interruption of Trapper’s operations during the appeal process or while additional environmental analyses are performed.”

If the court agrees with the Office of Surface Mining’s position it could dismiss the suit.

Colowyo and Trapper weren’t the only mines targeted by WildEarth Guardians.

According to the original claim filed by WildEarth Guardians, “U.S. Office of Surface Mining Reclamation and Enforcement violated NEPA and the Administrative Procedure Act by unlawfully approving mining plans for the Colowyo and Trapper Mines in Colorado; the Spring Creek Mine in Montana; the San Juan Mine in New Mexico; and the School Creek, Black Thunder, and Cordero Rojo Mines in Wyoming.”

Despite the unifying theme, the other claims were severed to be litigated in their respective states. The Wyoming case was later voluntarily dismissed.

Professor Mark Squillace, director of the Natural Resources Law Center at the University of Colorado, said the issue revolves around the federal government’s ability to delegate approval of mining permits to individual states.

“If the bulk of the decision is able to be delegated to the states then it doesn’t leave much for the federal government to do and, presumably, it doesn’t require much by way of an environmental analysis,” he said.

While the state reserves the authority to provide mining permits, it cannot approve mining plans on federal coal.

But because of the state permitting process the Office of Surface Mining tends to “rubber stamp” mining plans, said Samantha Ruscavage-Barz, a staff attorney for Guardians.

“What the federal agency doesn’t seem to understand is that its duty to review mining plans is a separate and independent duty from the state permitting process,” she said. “The federal government is required to comply with NEPA and do a comprehensive environmental analysis.”

Yet, Kramer outlined that Guardians took six years to file their claim (mining plans were approved for Colowyo in 2007) and failed to participate in the state process to comment on the adequacy of the environmental analysis.

Regardless, Guardians’ claim is irrelevant if they can’t prove the issue deserves to be brought before a federal court.

To do so, Guardians must establish that its members suffered a concrete injury caused by the Office of Surface Mining’s violation of NEPA and that favorable decision will likely redress the injury.

Contact Patrick Kelly at 970-875-1795 or pkelly@craigdailypress.com. Follow him on Twitter @M_PKelly.

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