Coal in the courts

When environmentalists began taking the climate change fight to the courts, their focus was strategically narrow. In the early part of this decade, most climate-related lawsuits focused on taking out the most immediate threat: new coal-fired power plants. It was a logical approach; had a slew of new plants come online, "they would've overwhelmed any other carbon reducing work we could have done," Bill Corcoran, western director for the Sierra Club's Beyond Coal campaign, told me last fall. And it's been wildly successful: According to the Sierra Club, 150 new coal plants have been derailed since 2001, and construction hasn't broken ground on a single new plant in the last two years. 

With this threat mostly quelled, environmental lawyers are starting to get more creative and holistic in their fight against coal. Mines and existing power plants have been added to the hit list. But existing facilities are trickier legal targets, and environmentalists are still experimenting with ways to get at them through the courts and administrative processes. 

One of the more novel attempts I've noticed lately was a petition filed with the Interior Department this spring by WildEarth Guardians. The group asked Interior to overhaul its system for leasing coal in the Powder River Basin -- where mines churn out about 40 percent of our domestic coal supply -- in order to give the Bureau of Land Management more control over which tracts come up for lease, and to make environmental review of new mining proposals more stringent. The way to do that, said WildEarth Guardians, was to recertify the PRB as a federally recognized coal-producing region. Here's why certification is important, according to the Sierra Club's Carl Pope:

[I]n a officially designated coal-producing region, BLM must follow two important procedures that it can ignore outside such regions. First, leasing must be competitive -- to make sure that when valuable public-coal deposits are leased, the taxpayers get fair value from the companies that get to extract the coal. And second, the BLM must assess not only the environmental impacts of each lease but also the cumulative impact of the coal-leasing program for the entire region.

The PRB was decertified as a coal-producing region in 1990 as part of a nationwide push to streamline federal coal leasing. Since then, coal companies have drawn up their own lease tracts, which they then apply to mine through the BLM. The agency does environmental analysis for each application, but the process isn't guided by a higher-level review of the regional and national impacts of mining throughout the basin. The result, according to environmentalists, is that the climate impacts of mining coal in the PRB are given shoddy consideration during the leasing process, and coal prices aren't competitively set, keeping them artificially low.

The petition, and a suite of lawsuits targeting new PRB mining leases that have also been brought, were potentially clever ways to put a kink in the coal supply chain. Enviros hoped to compel the BLM to put a cap on the amount of coal it leases in the PRB. And mining industry folks said that if the lawsuits delayed new lease sales long enough, they could impair mining companies' ability to deliver coal to market.  

But the BLM isn't budging. Director Bob Abbey answered the petitioner's various requests in late January with a resounding 'no way.' WildEarth Guardians will likely sue. If that doesn't work out, they've got other tricks in their quiver -- the group has already brought lawsuits challenging a number of individual leases in the basin, as well. 

Cally Carswell is HCN's assistant editor.

Coal trucks in Wyoming's Powder River Basin. Photo courtesy Flickr user Kimon Berlin.