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2011-11-17 North Porcupine Appeal Pm&Sa Edits

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2011-11-17 North Porcupine Appeal Pm&Sa Edits BEFORE THE APPEAL DECIDING OFFICER USDA FOREST SERVICE, ROCKY MOUNTAIN REGION ) WILDEARTH GUARDIANS, ) Appeal of the Record of Decision to POWDER RIVER BASIN RESOURCE ) Consent to the North Porcupine Field COUNCIL, AND SIERRA CLUB ) Coal Lease by Application, ) WYW173408, Campbell County, Appellants, ) Wyoming (Sept. 30, 2011) ) v. ) ) PHIL CRUZ, Supervisor, ) Medicine Bow-Routt National Forest/ ) Thunder Basin National Grassland ) ) Deciding Official. ) ) NOTICE OF APPEAL, STATEMENT OF REASONS, AND REQUEST FOR RELIEF Submitted via e-mail November 18, 2011 [email protected] TABLE OF CONTENTS NOTICE OF APPEAL 3 INTRODUCTION 3 APPELLANTS 7 STATEMENT OF REASONS 8 I. The Supervisor Violated NEPA by Failing to Prepare his Own Environmental Analysis 8 A. The Supervisor Failed to Consider a Reasonable Range of Alternatives 9 II. The Secretaries of Agriculture and Interior have not Made Findings that Surface Mining can Occur on Lands Within the TBNG That are Part of the North Porcupine LBA 11 III. The Supervisor Failed to Analyze and Assess Global Climate Change Impacts in Accordance with NEPA 13 A. The Supervisor Failed to Analyze and Assess the Impacts of CO2 Emissions that Would Result from the North Porcupine LBA 14 B. The Supervisor Failed to Analyze and Assess the Potentially Significant Climate Change Impacts of the North Porcupine LBA 18 C. The Supervisor Failed to Analyze in Detail a Range of Alternatives to Address Greenhouse Gas Emissions and Climate Change Impacts 20 IV. The Supervisor Failed to Adequately Analyze and Assess Air Quality Impacts 22 A. Ozone 22 B. Nitrogen Dioxide 26 C. PM2.5 NAAQS 28 D. PM2.5 Increments for Class I Areas 29 E. PM10 NAAQS and Increments 31 F. Visibility 33 V. The Supervisor Failed to Adequately Analyze Indirect and Cumulative Air Quality Impacts 34 VI. The Supervisor Failed to Comply with Grassland Plan Standards Related to Air Quality Protection 36 APPEAL OF NORTH PORCUPINE FIELD COAL LEASE CONSENT RECORD OF DECISION PAGE 1 A. Ozone 37 B. Nitrogen Dioxide 38 C. PM2.5 NAAQS and Increments 38 D. PM10 NAAQS and Increments 39 VII. The Supervisor Failed to Assure Compliance with Ferruginous Hawk Standards 39 VIII. The USFS Failed to Adequately Analyze and Assess Grazing Impacts 40 IX. The USFS Failed to Adequately Analyze and Assess Compliance with Contemporaneous Reclamation Requirements and Associated Environmental Impacts 41 X. The Supervisor Failed to Consider Mitigation Measures Related to Groundwater Impacts or to Ensure Compliance with SMCRA’s Mandates To Minimize Impacts to the Hydrologic Balance 45 REQUEST FOR RELIEF 47 SIGNATURE PAGE 48 TABLE OF EXHIBITS 49 APPEAL OF NORTH PORCUPINE FIELD COAL LEASE CONSENT RECORD OF DECISION PAGE 2 NOTICE OF APPEAL Pursuant to 36 C.F.R. § 215 and 5 U.S.C. § 555(b), WildEarth Guardians, Powder River Basin Resource Council, and the Sierra Club (hereafter “Appellants”) hereby appeal the September 30, 2011 Record of Decision (“ROD”) signed by Phil Cruz, Supervisor of the Medicine Bow-Routt National Forest/Thunder Basin National Grassland, to provide the U.S. Forest Service’s (“USFS’s”) consent to lease 5,120.67 acres of the Thunder Basin National Grassland (“TBNG”) as part of the North Porcupine Field coal lease by application (hereafter referred to as the “North Porcupine LBA”).1, 2 The Bureau of Land Management (“BLM”) is considering offering the North Porcupine Field coal LBA for sale, which consists of 6,364 acres and over 721 million tons of mineable Federal coal reserves. Before the BLM can offer the lease, the USFS must provide consent to leasing the 5,120.67 acres of lands that are part of the TBNG. See ROD at 2. The North Porcupine LBA is being proposed by the BLM together with five other LBAs, which are collectively referred to as the Wright Area LBAs. Issuance of these coal leases would facilitate the expansion of the Black Thunder and North Antelope Rochelle coal mines, the two largest coal mines in the United States. Five of the six LBAs, including the North Porcupine LBA, require USFS consent before they can be issued. Consent to the North Porcupine LBA would facilitate coal mining specifically at the North Antelope Rochelle coal mine in the Powder River Basin of northeastern Wyoming, the largest coal producing region in the United States. The North Antelope Rochelle coal mine, a massive strip mining operation, is one of the largest coal mines in the United States. See Peabody Energy, http://www.peabodyenergy.com/Media/factsheets/NARoch.asp (last accessed Nov. 17, 2011). By issuing his consent, Supervisor Cruz is conceding any future right by the USFS to restrict or otherwise modify coal mining activities undertaken to develop the North Porcupine LBA. INTRODUCTION Appellants bring this appeal because the Supervisor’s decision suffers from a number of fatal flaws. In particular, although the ROD relies on the Wright Area Coal Lease Applications Final Environmental Impact Statement (hereafter referred to as the “Wright Area Coal FEIS” or “FEIS”) prepared by the BLM, this FEIS was not prepared by the USFS and further fails to analyze and assess whether the proposed actions would fully comply with substantive and unique USFS obligations, including TBNG Land and Resource Management Plan (hereafter referred to as the “Grassland Plan”) standards and guidelines and special use regulations. Adding to our concern is that there does not appear to be any legitimate need for the North Porcupine LBA. According to the ROD, even if the North Porcupine LBA is rejected, “Other national coal producers have the capacity to produce coal and replace the production from 1 Pursuant to 36 C.F.R. § 215.14(b)(3), WildEarth Guardians is the lead Appellant. 2 Throughout this appeal, we refer to “USFS” and “Supervisor” interchangeably. APPEAL OF NORTH PORCUPINE FIELD COAL LEASE CONSENT RECORD OF DECISION PAGE 3 this existing mine.” ROD at 9. The Supervisor further notes in his ROD that even if the LBA is rejected, the North Antelope Rochelle coal mine would continue operating for 9.9 years. See id. The only purported need for issuing the lease appears to be to buttress the competitiveness of the North Antelope Rochelle coal mine—not to meet any domestic energy needs.3 As the Supervisor states, a denial of the proposed coal lease would only “deny the mine operator the ability to compete with other operators in an open market[.]” Id. This hardly seems like a valid reason to consent to leasing. Critically, the Supervisor’s decision inappropriately dismisses taking any reasonable action to address the foreseeable impacts of global climate change caused by dramatic increases in greenhouse gas emissions, in violation of the National Environmental Policy Act (“NEPA”) and the Agency’s substantive duties under its special use regulations. This is disturbing in light of the fact that USFS Chief Tom Tidwell has identified global climate change as a significant threat to the forests and grasslands across the country. As the Chief stated in testimony to the Senate Appropriations Committee: Broad scientific consensus confirms that global climate change is real and that the impacts are altering forests and grasslands, increasing the frequency of disturbance events and diminishing the ecosystem services they provide. Some of the most urgent forest and grassland management problems of the past 20 years— wildfires, changing water regimes, and expanding forest insect infestations—have been driven, in part, by a changing climate; future impacts are likely to be even more severe. Statement of Tom Tidwell, USDA Forest Service Chief, Before the Senate Committee on Appropriates Subcommittee on Interior Environment and Related Agencies (March 17, 2010) at 4, available at http://appropriations.senate.gov/ht- interior.cfm?method=hearings.download&id=2bcfbdfe-80cd-4dbb-b0e4-1d6a2d62288f (last accessed Nov. 17, 2011). This statement is attached as Exhibit 1. Notably, the Chief is not alone in his concern over the impacts of global climate change. On October 5, 2009, President Obama, responding to concerns over global climate change, called on all federal agencies to “measure, report, and reduce their greenhouse gas emissions from direct and indirect activities.” President Obama, Executive Order No. 13514, Federal Leadership in Environmental, Energy, and Economic Performance, Section 1 (Oct. 5, 2009), available at http://edocket.access.gpo.gov/2009/pdf/E9-24518.pdf (last accessed Nov. 17, 2011). Despite these recognitions that global climate change is a real threat to America’s forests and grasslands, and despite calls from the President of the United States to reduce greenhouse gas emissions, the Supervisor did nothing to address the global climate change impacts associated with the North Porcupine LBA. This was not a minor oversight. The North Porcupine LBA includes 721,154,828 tons of mineable Federal coal reserves. See ROD at 2. This coal will 3 In fact, Peabody Energy, the owner of the North Antelope Rochelle coal mine and applicant for the North Porcupine LBA, has announced that it is expecting to increase exports of Wyoming coal to Asia. See Tomich, J., “Peabody planning Asian coal shipments through Washington,” St. Louis Post-Dispatch (March 11, 2011), available at http://www.stltoday.com/business/local/article_45e1b38e-44ef-5cf9-bea9-2f05b3c1fe04.html (last accessed Nov. 17, 2011). This article is attached as Exhibit 2. APPEAL OF NORTH PORCUPINE FIELD COAL LEASE CONSENT RECORD OF DECISION PAGE 4 be sold and burned in power plants, leading to the release of massive amounts of carbon dioxide 4 (“CO2”)—the greenhouse gas most responsible for fueling global climate change. All told, the amount of coal slated to be mined as part of the North Porcupine LBA will lead to the release 5 of 1,196,395,860 metric tons of CO2. This amount of CO2 is not insignificant—it equals 20 6 percent of all CO2 emissions released in the United States in 2009.
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