WILDEARTH GUARDIANS, ET AL.

196 IBLA 1 Decided August 26, 2020

WILDEARTH GUARDIANS, ET AL.

IBLA 2016-279 Decided August 26, 2020

Appeal from a decision of the Acting State Director, Utah State Office, Bureau of Land Management, authorizing a competitive coal lease sale. UTU-84102.

Affirmed.

APPEARANCES: Samantha Ruscavage-Barz, Esq., WildEarth Guardians, Santa Fe, New Mexico, for WildEarth Guardians; Michael A. Saul, Esq., Center for Biological Diversity, Denver, Colorado, for Center for Biological Diversity; Aaron M. Paul, Esq., and Neil Levine, Esq., Grand Canyon Trust, Denver, Colorado, and Mary H. O’Brien, Grand Canyon Trust, Castle Valley, Utah, for Grand Canyon Trust; Nathaniel Shoaff, Esq., Sierra Club, Oakland, California, for Sierra Club; Sarah Goldberg, Esq., and William Prince, Esq., Dorsey & Whitney LLP, Salt Lake City, Utah, and Michael Drysdale, Esq., Dorsey & Whitney LLP, Minneapolis, Minnesota, for Canyon Fuel Company, LLC; Kathy A.F. Davis, Esq., Anthony Rampton, Esq., Roger Fairbanks, Esq., and Jake M. Garfield, Esq., Utah Attorney General’s Office, Salt Lake City, Utah, for the State of Utah; Molly E. Nixon, Esq., Office of the Solicitor, U.S. Department of the Interior, Washington, D.C., and John Steiger, Esq., Office of the Regional Solicitor, U.S. Department of the Interior, Salt Lake City, Utah, for the Bureau of Land Management.

OPINION BY ACTING ADMINISTRATIVE JUDGE LEVINE1

WildEarth Guardians, Center for Biological Diversity, Grand Canyon Trust, and the Sierra Club (collectively, WildEarth) appeal from a Record of Decision, DOI-BLM-UT- 070-2008-14, issued by the Utah State Office of the Bureau of Land Management (BLM)

1 Administrative Judge Haugrud took no part in the consideration or decision of this appeal.

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on August 12, 2016. The decision authorized a competitive lease sale of 6175.39 acres of Federal coal reserves underlying National Forest lands in central Utah.

WildEarth asserts that BLM violated the Surface Mining Control and Reclamation Act of 1977 (SMCRA) and the Federal Land Policy and Management Act of 1976 (FLPMA) by not designating the lands at issue as unsuitable for surface coal mining operations. WildEarth also asserts that BLM violated the National Environmental Policy Act (NEPA) by failing to take a hard look at the air quality impacts resulting from transportation, combustion, and export of the coal that will be produced through the lease sale, and at the climate change effects of the lease sale.

Because WildEarth has not demonstrated that BLM’s decision violated SMCRA, FLPMA, or NEPA, we affirm BLM’s decision.

BACKGROUND

Legal background

The Secretary of the Interior, acting through BLM, is authorized to make certain Federal lands available for coal leasing.2 One way in which such leases are issued is through a process called leasing by application.3 Under this process, after receiving a valid application to lease a particular tract, BLM must decide whether to make the tract available for competitive bidding through a lease sale.4

If the tract is located within a National Forest, BLM must obtain the consent of the U.S. Forest Service before issuing a lease, and may only issue the lease subject to conditions prescribed by the Forest Service.5 Once a lease is issued, the lessee must

2 30 U.S.C. § 201(a)(1). All citations to statutes and regulations in this decision are to the current edition, which is 2018 for statutes and 2019 for regulations. 3 See generally 43 C.F.R. Subpart 3425. 4 See id. § 3425.4(b); see also 30 U.S.C. § 201(a)(1) (“The Secretary of the Interior . . . shall award leases . . . by competitive bidding.”); Administrative Record (AR), BLM Exhibit 2, BLM and Forest Service, Final Supplemental Environmental Impact Statement for the Leasing and Underground Mining of the Greens Hollow Federal Coal Lease Tract, UTU-84102 at 19 (February 2015) (Final SEIS) (“The District Manager of the BLM must decide . . . [w]hether or not to offer the tract for competitive leasing . . . .”). 5 See 30 U.S.C. § 201(a)(3)(A)(iii); 43 C.F.R. §§ 3400.3-1, 3425.3(b).

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follow a separate mine permitting process, which includes both state and federal components, before it may begin mining the coal.6

SMCRA governs the conduct of “surface coal mining operations” on both Federal and non-Federal lands.7 “[S]urface coal mining operations” include not only “activities conducted . . . in connection with a surface coal mine,” but also “surface operations and surface impacts incident to an underground coal mine.”8

SMCRA requires the Secretary of the Interior to “conduct a review of the Federal lands to determine . . . whether there are areas on Federal lands which are unsuitable for all or certain types of surface coal mining operations.”9 If the Secretary finds “an area on Federal lands to be unsuitable for all or certain types of surface coal mining operations,” the Secretary must “withdraw such area or condition any mineral leasing . . . in a manner so as to limit surface coal mining operations on such area.”10

SMCRA’s implementing regulations specify the timing and content of this review, which is commonly referred to as an unsuitability review. As relevant to this appeal, the regulations require the unsuitability review to be conducted “[d]uring . . . the environmental assessment conducted for a specific lease application.”11 The regulations also list twenty criteria that BLM must consider as part of the review. At issue in this appeal is criterion number 15, also known as the “(o)(1) criterion” for the subsection of the regulation in which it appears, which states:

Federal lands which the surface management agency and the state jointly agree are habitat for resident species of fish, wildlife and plants of high interest to the state and which are essential for maintaining these priority wildlife and plant species shall be considered unsuitable. . . .

. . .

6 See Final SEIS, supra note 4, at 4, 298; AR, BLM Exhibit 1, BLM, Record of Decision DOI-BLM-UT-070-2008-14 at 4 (Aug. 12, 2016) (BLM ROD). 7 See generally 30 U.S.C. § 1202. 8 Id. § 1291(28)(A); accord 43 C.F.R. § 3400.0-5(mm). 9 30 U.S.C. § 1272(b). 10 Id.; see also § 1272(e) (prohibiting new surface coal mining operations on National Forest lands, subject to certain exceptions). 11 43 C.F.R. § 3461.3-1(b).

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A lease may be issued if, after consultation with the state, the surface management agency determines that all or certain stipulated methods of coal mining will not have a significant long-term impact on the species being protected.[12]

The SMCRA regulations also provide that on lands whose surface is managed by another federal agency, BLM must comply with the surface management agency’s land use plan when conducting a coal lease sale.13

In addition to SMCRA, BLM must also comply with FLPMA when deciding whether to issue a coal lease. FLPMA is BLM’s organic act, guiding the agency’s management of the public lands.14 The “public lands,” in this context, include “any land and interest in land owned by the United States” that is “administered by the Secretary of the Interior through” BLM.15 FLPMA requires BLM to “develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands,”16 and to “manage the public lands . . . in accordance with [these] land use plans . . . when they are available.”17 Therefore, when both BLM and the Forest Service have land use plans that apply to a particular area, BLM must comply with both plans when leasing coal underlying lands managed by the Forest Service in that area.18

Finally, BLM’s coal leasing decisions are also subject to NEPA. NEPA requires every federal agency, before it undertakes a “major Federal action[] significantly affecting the quality of the human environment,” to prepare a “detailed statement” describing “the environmental impact of the proposed action, . . . any adverse environmental effects which cannot be avoided should the proposal be implemented, [and] alternatives to the proposed action.”19

12 43 C.F.R. § 3461.5(o)(1). 13 See id. §§ 3420.1-4(a),(b)(2), 3425.2. 14 See generally 43 U.S.C. § 1701. 15 See id. § 1702(e). 16 Id. § 1712(a). 17 Id. § 1732(a); see also 43 C.F.R. § 1610.5-3(a) (“All future resource management authorizations and actions . . . shall conform to the approved [land use] plan.”). 18 Cf. Wyo. Outdoor Council, 159 IBLA 388, 394 (2003) (noting that oil and gas leases issued by BLM on Forest Service lands are governed by BLM’s land use plans). 19 42 U.S.C. § 4332(2)(C).

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Factual background

WildEarth challenges BLM’s decision to hold a competitive lease sale for a tract of land known as the Greens Hollow Tract.20 The Greens Hollow Tract consists of 6175.39 acres of Federal lands located in Sanpete and Sevier Counties, Utah, within the Manti-La Sal and Fishlake National Forests.21 The Tract is located next to an existing underground coal mine, known as the SUFCO Mine, and the coal located on the Tract can be accessed by extending the existing underground workings of the SUFCO Mine.22

On October 13, 2005, the owner of the SUFCO Mine submitted an application to BLM, asking the agency to make the Greens Hollow Tract available through a competitive lease sale.23 Canyon Fuel Company, LLC (Canyon Fuel) later acquired the mine and assumed the lease application.24

In December 2011, BLM and the Forest Service released a final environmental impact statement (EIS) analyzing the proposed Greens Hollow Tract lease sale.25 The same month, the Forest Service issued a draft decision consenting to BLM offering the lease sale, with conditions.26 WildEarth administratively appealed the Forest Service’s draft decision, and the Forest Service withdrew the draft decision in order to revise the EIS and the record of decision.27

In March 2014, the agencies published a draft supplemental EIS (SEIS) for the lease sale.28 WildEarth submitted comments on the draft SEIS,29 and the agencies published a final SEIS in February 2015 (the Final SEIS).30 The Final SEIS analyzed three

20 WildEarth Statement of Reasons at 1 (filed Aug. 18, 2017) (WildEarth SOR); BLM ROD, supra note 6, at 2. 21 BLM ROD, supra note 6, at 2. 22 Id. 23 Id.; Final SEIS, supra note 4, at 1. 24 BLM ROD, supra note 6, at 2. 25 Final SEIS, supra note 4, at 1. 26 Id. 27 WildEarth SOR, supra note 20, at 2; Final SEIS, supra note 4, at 1. 28 Final SEIS, supra note 4, at 22. 29 See AR, WildEarth Exhibit 1, WildEarth, Comments on the Draft Supplemental Environmental Impact Statement for the Leasing and Underground Mining of the Greens Hollow Federal Coal Lease Tract UTU-84102 (Apr. 28, 2014) (WildEarth Draft SEIS Comments). 30 See Final SEIS, supra note 4.

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alternatives: a no action alternative (Alternative 1) in which BLM would not offer the Tract for leasing; Alternative 2, in which BLM would offer the entire Tract for leasing, making an estimated 56.6 million tons of recoverable coal available; and Alternative 3, in which BLM would require lessees to leave about 2% of the recoverable coal in place to avoid surface subsidence in certain ecologically sensitive areas.31 The Final SEIS also included an “Unsuitability Criteria Assessment” that applied the criteria from the SMCRA regulations.32

In March 2015, the Forest Service issued a new draft decision. The Forest Service received comments from WildEarth on the new draft decision, and responded to those comments in August 2015.33

After the agencies published the Final SEIS and the Forest Service responded to WildEarth’s comments on its draft decision, but before the agencies took any further actions in connection with the Greens Hollow Tract lease sale, another development occurred that shaped this appeal. In September 2015, both BLM and the Forest Service amended their respective land use plans for the areas encompassing the Tract, in order to incorporate additional protections for Greater Sage-Grouse habitat.34 Like the parties, we refer to BLM’s land use plan amendment as the Resource Management Plan Amendment (RMP Amendment), while we refer to the Forest Service’s land use plan amendment as the Forest Service Plan Amendment. Both BLM’s RMP Amendment and the Forest Service Plan Amendment included new provisions governing coal leasing in Sage-Grouse habitat. Moreover, in both plan amendments, BLM and the Forest Service

31 See id. at 13-16. 32 See id. App’x A. 33 See AR, BLM Exhibit 3, Letter from George C. Iverson, Forest Service, to Jeremy Nichols, WildEarth (Aug. 25, 2015) (Forest Service Comment Response). 34 See AR, BLM Exhibit 6, BLM, Utah Greater Sage-Grouse Approved Resource Management Plan Amendment (Sept. 2015) (RMP Amendment); Forest Service, Greater Sage-grouse Record of Decision for Idaho and Southwest Montana, Nevada and Utah and Land Management Plan Amendments (Sept. 2015), available at https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprd3855559.pdf (Forest Service Plan Amendment) (last visited Aug. 14, 2020). The Forest Service Plan Amendment is not included in the AR, but BLM discusses it in its brief on appeal, see BLM’s Answer to Appellant’s Statement of Reasons at 10-11 (filed Oct. 17, 2017) (BLM Answer), and we take administrative notice of its contents, see 43 C.F.R. § 4.24(b).

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designated part of the Greens Hollow Tract as Priority Habitat Management Area (PHMA), one of their most protective designations for Greater Sage-Grouse habitat.35

On October 5, 2015, less than a month after approving the Forest Service Plan Amendment, the Forest Service issued a new record of decision consenting to the Greens Hollow Tract lease sale, with conditions.36 On August 12, 2016, BLM issued a record of decision adopting Alternative 3 from the Final SEIS.37

Developments since BLM’s decision

WildEarth timely appealed BLM’s decision to this Board, and filed a petition to stay BLM’s decision.38 Canyon Fuel and the State of Utah both intervened as respondents. On October 26, 2016, we denied WildEarth’s petition for a stay, explaining that because BLM’s decision to proceed with a competitive lease sale “does not automatically result in the issuance of a coal lease or authorization of any ground-disturbing activities or mining operations,” WildEarth did not “demonstrate that any of the harms alleged by the organization . . . is ‘immediate and irreparable.’”39 We did not address the merits of WildEarth’s appeal.

After we denied WildEarth’s petition for a stay, BLM held the lease sale, and issued the Greens Hollow Tract coal lease to Canyon Fuel, the highest bidder.40 In April 2017, Canyon Fuel submitted a mining permit application to the State of Utah, to begin the process of incorporating the Greens Hollow Tract into its existing operations.41

35 WildEarth SOR, supra note 20, at 6; see also RMP Amendment, supra note 34, at 1-3 (showing PHMA in the general location of the Greens Hollow Tract); Forest Service Plan Amendment, supra note 34, at 18 (same). 36 See AR, BLM Exhibit 4, Forest Service, Record of Decision for the Consent with Stipulations to the BLM Offering for Lease Greens Hollow Federal Coal Lease Tract (Oct. 2015). 37 See BLM ROD, supra note 6. 38 See WildEarth Notice of Appeal and Petition for Stay at 1 (filed Sept. 12, 2016) (noting that BLM published notice of its decision on August 18, 2016). 39 WildEarth Guardians, 188 IBLA 388, 391-392 (2016). 40 See BLM’s Response to Notice of Supplemental Authority at 2 (filed Feb. 12, 2018) (BLM Response to NSA). 41 Id. at 3.

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On August 15, 2017, WildEarth filed its Statement of Reasons in this appeal, and the other parties then filed their answers.42

While the parties were briefing the merits of this appeal, Canyon Fuel was proceeding with its mining permit application process. That permitting process drew in another federal agency that is not a party to this appeal, the Office of Surface Mining Reclamation and Enforcement (OSMRE).43 As part of the mine permitting process, OSMRE decided to prepare a supplemental environmental assessment tiered to the Final SEIS prepared by BLM and the Forest Service. OSMRE released its supplemental environmental assessment in December 2017, with BLM and the Forest Service serving as cooperating agencies.44 On January 28, 2018, WildEarth filed a notice of supplemental authority in this appeal, asking this Board to consider OSMRE’s supplemental environmental assessment as relevant authority.45

DISCUSSION

Burden of proof and general standard of review for BLM coal leasing decisions

BLM’s decision to make the Greens Hollow Tract available for leasing is a discretionary decision.46 When challenging such a discretionary decision, an appellant bears the burden of showing, “with objective proof,” that “BLM committed an error of law or a material error in its factual analysis, or that BLM’s decision is not supported by a record showing that BLM gave due consideration to all relevant factors and acted on the

42 See WildEarth SOR, supra note 20; BLM Answer, supra note 34; Canyon Fuel Answer to the Statement of Reasons (filed Nov. 2, 2017) (Canyon Fuel Answer); State of Utah’s Answer to Appellants’ Statement of Reasons (filed Nov. 3, 2017). 43 See WildEarth Notice of Supplemental Authority at 2 (filed Jan. 29, 2018) (WildEarth NSA); BLM Response to NSA, supra note 40, at 2-3; see also BLM ROD, supra note 6, at 4 (describing the permitting process, including OSMRE’s role). 44 See AR, Exhibit 1 to WildEarth NSA, OSMRE, Greens Hollow Tract Mining Plan Modification Supplemental Environmental Assessment (Dec. 2017) (OSMRE SEA); see also 40 C.F.R. §§ 1501.6(b)(1), 1508.5 (describing the role of a cooperating agency). 45 WildEarth NSA, supra note 43. 46 See 30 U.S.C. § 201(a)(1).

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basis of a rational connection between the facts found and the choice made.”47 Put more succinctly, we review such decisions to determine whether they have a “rational basis.”48

We address WildEarth’s arguments in two groups: one consisting of the claims arising under SMCRA and FLPMA, and another consisting of the NEPA claims.

WildEarth’s SMCRA and FLPMA claims

WildEarth argues that BLM’s decision to proceed with the Greens Hollow Tract lease sale despite the presence of high-value Greater Sage-Grouse habitat, designated as PHMA in the RMP Amendment, violated two distinct legal requirements. First, WildEarth argues that SMCRA requires BLM to designate PHMA as unsuitable for surface coal mining operations.49 Second, WildEarth argues that the RMP Amendment, made binding on BLM by FLPMA, prohibits BLM from issuing a coal lease within PHMA.50

The SMCRA claim

SMCRA requires the Secretary of the Interior to “review . . . the Federal lands to determine . . . whether there are areas on Federal lands which are unsuitable for all or certain types of surface coal mining operations.”51 “[S]urface coal mining operations,” in turn, include “surface operations and surface impacts incident to an underground coal mine.”52 Because mining the Greens Hollow Tract is expected to involve surface operations and surface impacts, including ventilation and escapeway facilities, material storage piles, and mining-related subsidence of the overlying surface,53 the Department was required to complete an unsuitability review before proceeding with the lease sale.54

The (o)(1) criterion, contained in the SMCRA regulations, requires the decision- maker to designate as unsuitable “Federal lands which the surface management agency and the state jointly agree are habitat for resident species of . . . wildlife . . . of high

47 Confed. Tribes of the Goshute Reservation, 190 IBLA 396, 401-403 (2017). 48 See id. at 401 (“The Board will affirm a BLM decision made in the exercise of its discretionary authority when that decision has a rational basis that is supported by facts in the record.”). 49 WildEarth SOR, supra note 20, at 5-6. 50 Id. 51 30 U.S.C. §§ 1272(b), 1291(23); accord 43 C.F.R. §§ 3461.0-6, 3461.0-7. 52 30 U.S.C. § 1291(28)(A); accord 43 C.F.R. § 3400.0-5(mm). 53 Final SEIS, supra note 4, at 33-34. 54 See 43 C.F.R. §§ 3461.1(b), 3461.3-1(b)(1); BLM Answer, supra note 34, at 8.

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interest to the state and which are essential for maintaining these priority wildlife . . . species.”55 The (o)(1) criterion also provides, however, that “[a] lease may be issued if, after consultation with the state, the surface management agency determines that all or certain stipulated methods of coal mining will not have a significant long-term impact on the species being protected.”56 WildEarth argues that this criterion requires BLM to designate the Greens Hollow Tract as unsuitable for surface coal mining operations.57

As an initial matter, the parties disagree about BLM’s role in the unsuitability determination, and, as a result, about our jurisdiction to address this claim. WildEarth argues that BLM is responsible for “determin[ing] whether federal lands are unsuitable,” and therefore for applying the (o)(1) criterion.58 Canyon Fuel, by contrast, argues that because the Forest Service is the “surface management agency” referred to in the (o)(1) criterion, “[t]he decision not to deem the land ‘unsuitable’ . . . was made by the Forest Service,” and “BLM simply has no role in the unsuitability determination.”59 Therefore, Canyon Fuel argues that “the Board lacks jurisdiction to review that determination.”60 BLM, meanwhile, lands in the middle between the other two parties, arguing that the Board’s “jurisdiction is limited to reviewing whether BLM’s reliance on the [Forest Service’s] decisions was reasonable.”61

The question of whether we have jurisdiction to review a BLM leasing decision for compliance with the unsuitability criteria where BLM is not the surface management agency is one that we have not expressly analyzed before. In a footnote to one previous opinion, we described a suitability review conducted nearly twenty years before that opinion by stating that “[p]ursuant to SMCRA, the Forest Service was obligated to and did make an ‘unsuitability criteria determination.’”62 Having considered this question more closely in this appeal, however, we agree with BLM and WildEarth that the ultimate determination regarding unsuitability was made by BLM in this case, and therefore that we have jurisdiction over WildEarth’s claim.

55 43 C.F.R. § 3461.5(o)(1). 56 Id. 57 WildEarth SOR, supra note 20, at 5-6. 58 Id. at 4-5. 59 Canyon Fuel Answer, supra note 42, at 5-6. 60 Id. at 6. 61 BLM Answer, supra note 34, at 7; see also Canyon Fuel Answer, supra note 42, at 6 (noting this disagreement between BLM and Canyon Fuel). 62 See Jesse H. Knight, 155 IBLA 104, 113 n.5 (2001) (citation omitted).

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SMCRA charges the Secretary of the Interior with reviewing federal lands for unsuitability.63 The question, therefore, is whether the Secretary has delegated that responsibility in this case to the Forest Service, as Canyon Fuel suggests, or to BLM, as WildEarth suggests. In answering this question, we are guided by bedrock principles of administrative law that have been set forth by Federal courts:

When a statute delegates authority to a federal officer or agency, subdelegation to a subordinate federal officer or agency is presumptively permissible . . . . But the cases recognize an important distinction between subdelegation to a subordinate and subdelegation to an outside party. The presumption that subdelegations are valid . . . applies only to the former. There is no such presumption covering subdelegations to outside parties. Indeed, if anything, the case law strongly suggests that subdelegations to outside parties are assumed to be improper absent an affirmative showing of congressional authorization.[64]

Because the Forest Service is part of the U.S. Department of Agriculture, and is not subordinate to the Secretary of the Interior, we conclude that the Secretary did not delegate his or her responsibility for conducting the unsuitability review on Federal lands to the Forest Service.65

This conclusion is consistent with the delegations found in the Departmental Manual and the SMCRA regulations.66 The Departmental Manual delegates to BLM “the authority . . . for Federal lands review [under SMCRA] on any land, including mineral interests, owned by the United States . . . without regard to the agency having responsibility for management thereof.”67 The Manual further refers to a “statement of policy” published in the Federal Register in 1978, which assigns the Secretary’s responsibility for conducting unsuitability reviews to “BLM in substantial consultation

63 30 U.S.C. §§ 1272(b), 1291(23); see Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 705 (D.C. Cir. 2008). 64 U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004); accord La. Forestry Ass’n v. Sec’y U.S. Dep’t of Labor, 745 F.3d 653, 671 (3d Cir. 2014); Fund for Animals v. Kempthorne, 538 F.3d 124, 132 (2d Cir. 2008). 65 See La. Forestry Ass’n, 745 F.3d at 671 (describing the U.S. Department of Labor as “an outside, non-subordinate agency” relative to the U.S. Department of Homeland Security). 66 See Edward R. Woodside, 125 IBLA 317, 323 & n.7 (1993) (identifying delegations of the Secretary’s authority in the Departmental Manual and in regulations). 67 235 Departmental Manual 1.1(J) (effective date Oct. 5, 2009).

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with [OSMRE, the U.S. Geological Survey,] and other surface managing agencies as appropriate.”68

The SMCRA regulations, like the Departmental Manual, do not delegate the Secretary’s responsibility for conducting the unsuitability review to the Forest Service, although they assign the Forest Service an important role in that determination. The regulations state that “[t]he Department shall carry out [the unsuitability review] principally through land use planning assessments by the surface management agency,”69 while also recognizing that in some cases (such as this case) the review will not be completed during the land use planning process, but rather “[d]uring . . . the environmental assessment conducted for a specific lease application.”70 The regulations refer to various factual findings that must be made by the surface management agency, including, in the context of the (o)(1) criterion, the findings that certain lands “are habitat for [high-interest] species” and “are essential for maintaining these . . . species,” and “that all or certain stipulated methods of coal mining will not have a significant long-term impact on the species.”71 Nonetheless, the regulations do not expressly delegate to the surface management agency the Secretary’s ultimate responsibility to determine “whether there are areas on Federal lands which are unsuitable for all or certain types of surface coal mining operations.”72

68 Coordination of Federal Lands Review under the Surface Mining Control and Reclamation Act, Land Use Planning under the Federal Land Policy and Management Act, and the Federal Coal Management Review under the President’s Environmental Message of May 1977: Statement of Policy; Request for Comments, 43 Fed. Reg. 57,662, 57,666 (Dec. 8, 1978). 69 43 C.F.R. § 3461.0-6 (emphasis added). 70 Id. § 3461.3-1; see Final SEIS, supra note 4, at A-2 (noting that some of the unsuitability criteria were applied during the Forest Service’s land use planning process, while others, including the (o)(1) criterion, were applied “in this document”). 71 43 C.F.R. § 3461.5(o)(1); see U.S. Telecom Ass’n, 359 F.3d at 567-568 (allowing an agency to “condition its grant of permission on the decision of [an outside] entity” within the scope of the outside entity’s authority, “so long as there is a reasonable connection between the outside entity’s decision and the [agency’s] determination,” to “use an outside entity . . . to provide the agency with factual information,” or to provide “advice and policy recommendations, provided the agency makes the final decisions itself”); accord La. Forestry Ass’n, 745 F.3d at 672-673; Fund for Animals, 538 F.3d at 133. 72 See 30 U.S.C. §§ 1272(b), 1291(23).

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Finally, we note that although BLM and Canyon Fuel on appeal ascribe the “Unsuitability Criteria Assessment” section of the Final SEIS to the Forest Service,73 there is nothing in either the Final SEIS or BLM’s decision that identifies the Forest Service alone as being responsible for this analysis.74

In light of all these considerations, we hold that the unsuitability determination required by SMCRA was made by BLM, and that we therefore have jurisdiction, as BLM itself argues, to ask whether that determination had a “rational basis.”75

Turning to the facts of this appeal, the Final SEIS contains the following discussion of the (o)(1) criterion:

The Greens Hollow proposed federal coal lease tract lies within the Parker Mountain – Emery Sage-Grouse Management Area (SGMA) established by Utah’s Conservation Plan for Greater Sage-grouse. Currently, greater-sage grouse and underground mining coexist within the SGMA. Specifically, the greater sage-grouse lek[76] in the immediate area of the [Greens Hollow] tract, named Wildcat Knolls, has experienced coal mining directly underneath the lek, with no measureable [sic] effect upon the population attending the lek. The Criterion is not applicable because sage- grouse habitat is not affected, as the mining is underground. Also the Criterion is excepted because existing mining has not had any measurable effect upon the local habitat or population.[77]

73 See BLM Answer, supra note 34, at 8-10; Canyon Fuel Answer, supra note 42, at 6. 74 See Final SEIS, supra note 4, at 1 (“The environmental analyses for the Greens Hollow tract in this Final SEIS was prepared [sic] jointly by the BLM Price Field Office, and the FS . . . .”); id. at 4 (“[L]ands in the tract were evaluated using the Unsuitability Criteria for Coal Mining cited at 43 CFR 3461 and attached in Appendix A.”); BLM ROD, supra note 6, at 9 (“As required by applicable law and regulations, the Unsuitability Criteria for Coal Mining described at 43 CFR Subpart 3461 was applied [sic] site-specifically to lands in the Greens Hollow Tract.”). 75 See Confed. Tribes of the Goshute Reservation, 190 IBLA at 401. 76 A “lek” is an area on which “male sage-grouse gather together to perform courtship displays.” See Endangered and Threatened Wildlife and Plants; 12-Month Findings for Petitions to List the Greater Sage-Grouse (Centrocercus urophasianus) as Threatened or Endangered, 75 Fed. Reg. 13,910, 13,915 (Mar. 23, 2010). 77 Final SEIS, supra note 4, at A-6.

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The last sentence of this discussion appears to invoke the exception in the (o)(1) criterion that allows a lease to be issued “if, after consultation with the state, the surface management agency determines that all or certain stipulated methods of coal mining will not have a significant long-term impact on the species being protected.”78 In particular, the agencies appear to have concluded that because the existing SUFCO Mine is located within the same Sage-Grouse Management Area as the Greens Hollow Tract, and because ongoing operations at the SUFCO Mine have not adversely affected the Sage- Grouse habitat that directly overlies the mine, extending those operations to the Greens Hollow Tract would not adversely affect the Sage-Grouse habitat, either. This conclusion is supported by a rational basis. The Final SEIS notes that the Wildcat Knolls lek has been used continuously by Greater Sage-Grouse since annual monitoring began in 1991, and that as recently as two years before the Final SEIS was published, the number of birds attending the lek was near its highest observed level.79 The EIS also notes that Sage-Grouse “use the area [around the lek] year round.”80 WildEarth has not identified any differences between the existing operations and the proposed operations on the Greens Hollow Tract that would suggest that extending those operations to the Tract would adversely affect Sage-Grouse habitat in a way that the existing operations have not. Therefore, we hold that BLM complied with SMCRA when it determined that the proposed lease fell within the exception to the (o)(1) criterion.

The FLPMA claim

WildEarth also alleges that the RMP Amendment, made binding on BLM by FLPMA, prohibited BLM from leasing the Greens Hollow Tract.81 When assessing a claim of this sort, we ask “whether BLM’s action conformed to the governing plans.”82 A decision “is in conformance with a land use plan where it is ‘specifically provided for in the plan, or if not specifically mentioned, [is] . . . clearly consistent with the terms, conditions, and decisions of the approved plan.’”83

The parties agree that BLM was required to conform to the RMP Amendment, but disagree about which provision of that Amendment applies. WildEarth argues that BLM should have complied with the management action (MA) for minerals resources (MR)

78 See 43 C.F.R. § 3461.5(o)(1); see also Final SEIS, supra note 4, at A-2 (noting that the Forest Service consulted with the Utah Division of Wildlife Resources). 79 See Final SEIS, supra note 4, at 82. 80 Id. 81 WildEarth SOR, supra note 20, at 5-6 & n.3. 82 See Wildlands Defense, 192 IBLA 383, 403 (2018). 83 See id. at 401 (quoting 43 C.F.R. § 1601.0-5(b)) (alterations in the original).

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numbered MA-MR-18. This provision, which applies to “Leases Associated with Surface Mining,” requires BLM to “determine whether [a] lease application area is ‘unsuitable’ for all or certain coal mining methods pursuant to 43 CFR, Part 3461.5,” and further provides that “PHMA is essential habitat for maintaining GRSG for purposes of the suitability criteria set forth at 43 CFR, Part 3461.5(o)(1).”84

Canyon Fuel, by contrast, argues that BLM’s decision was instead subject to management action MA-MR-19, which applies to “Leases Associated with Underground Mining.”85 This management action reads:

Consider leasing PHMA for coal that will be extracted through underground mining. Require the following stipulations as part of any new lease or lease modification:

• In PHMA, appurtenant facilities will not be placed in GRSG habitat, where technically feasible.

• In PHMA, if placement of facilities outside of GRSG habitat is not technically feasible, disturbances associated with the lease (construction, operation, or maintenance) can be allowed if they are consistent with the pertinent management for discretionary activities identified in [special status species management action] MA-SSS-3 . . . .

If the above criteria cannot be met, do not grant new leases or modifications.[86]

The Forest Service Plan Amendment also contains a management action similar to MA-MR-19.87 As noted above, the SMCRA regulations impose on BLM an independent duty to comply with the Forest Service Plan Amendment in this case.88

84 RMP Amendment, supra note 34, at 2-30. 85 Canyon Fuel Answer, supra note 42, at 7. 86 RMP Amendment, supra note 34, at 2-30. 87 See Forest Service Plan Amendment, supra note 34, at 34 (“When consenting to new underground coal leases, the Forest Service will include a lease stipulation prohibiting the location of surface facilities in PHMA. The Forest Service will not authorize new appurtenant surface facilities for related to [sic] existing underground mines unless no technically feasible alternative exists.”). 88 See 43 C.F.R. §§ 3420.1-4(a),(b)(2), 3425.2.

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We agree with Canyon Fuel that management action MA-MR-19 applies to the Greens Hollow lease sale. The question turns on whether the proposed lease is a “Lease[] Associated with Surface Mining” or a “Lease[] Associated with Underground Mining.” WildEarth argues that because the proposed lease involves “surface coal mining operations” within the meaning of SMCRA, the lease is a “Lease[] Associated with Surface Mining” within the meaning of the RMP Amendment.89 But SMCRA’s definition of “surface coal mining operations” includes both “activities conducted on the surface of lands in connection with a surface coal mine” and “surface operations and surface impacts incident to an underground coal mine.”90 The better reading of the RMP Amendment is that the “Leases Associated with Surface Mining” addressed in MA-MR-18 correspond to SMCRA’s category of “surface coal mine[s],” while the “Leases Associated with Underground Mining” addressed in MA-MR-19 correspond to SMCRA’s category of “underground coal mine[s].”91

Applying management action MA-MR-19, we find that BLM’s decision complied with the RMP Amendment. (We need not decide whether the decision would have complied with management action MA-MR-18.) MA-MR-19 requires BLM to include in the proposed lease the two listed stipulations constraining the placement of “appurtenant facilities . . . in GRSG habitat” within PHMA.92 In this case, BLM’s leasing decision included the stipulation that “[n]o new surface facilities shall be authorized in sage grouse priority habitat management areas.”93 While the stipulation refers to “new surface facilities” rather than to “appurtenant facilities,” we assume that BLM intended for the lease to comply with its own RMP Amendment, and therefore construe these terms as synonymous. Construed in this manner, the stipulation is at least as restrictive as required by MA-MR-19.

For these reasons, BLM’s decision complied with SMCRA and FLPMA.

89 WildEarth SOR, supra note 20, at 5. 90 See 30 U.S.C. § 1291(28)(A) (emphases added); 43 C.F.R. § 3400.0-5(mm). 91 See also BLM ROD, supra note 6, at 7 (“If leasing of the Greens Hollow Tract occurs, the coal resources would be developed using underground mining techniques.”). 92 RMP Amendment, supra note 34, at 2-30. 93 See BLM, Record of Decision DOI-BLM-UT-070-2008-14, App’x 3 at 3 (Aug. 12, 2016), available at https://eplanning.blm.gov/public_projects/nepa/65045/79563/92174/Greens_Hollow_ ROD_Attachments.pdf (last visited Aug. 14, 2020).

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WildEarth’s NEPA claims

WildEarth argues that BLM violated NEPA by failing to take a hard look at the air quality impacts resulting from transportation, combustion, and export of the Greens Hollow coal, and at the climate change effects of the lease sale.

NEPA standard of review

When reviewing an agency decision that is supported by an EIS, we ask whether the EIS “took a hard look at all of the potential significant environmental consequences of the proposed action.”94 In applying this standard, “the Board uses a rule of reason.”95 An appellant challenging a BLM decision based on an EIS must therefore “demonstrate by a preponderance of the evidence” that “BLM failed to adequately consider a substantial environmental question of material significance to the proposed action.”96

An EIS must address “[i]ndirect” environmental effects that are “caused by the action and . . . reasonably foreseeable.”97 As the Federal courts have explained, “[e]ffects are reasonably foreseeable if they are sufficiently likely to occur that a person of ordinary prudence would take [them] into account in reaching a decision.”98 “In determining what effects are reasonably foreseeable, an agency must engage in reasonable forecasting and speculation, with reasonable being the operative word.”99 “[A]n agency should not attempt to travel the easy path and hastily label the impact of [a decision] as too speculative and not worthy of agency review.”100

94 Confed. Tribes of the Goshute Reservation, 193 IBLA 333, 355 (2018) (quotation marks omitted); accord High Country Cons. Advocates v. U.S. Forest Serv., 951 F.3d 1217, 1223 (10th Cir. 2020). 95 Confed. Tribes of the Goshute Reservation 193 IBLA at 355 (quotation marks omitted). 96 Id. (quotation marks omitted). 97 40 C.F.R. §§ 1502.16(b), 1508.8(b); see Ctr. for Biological Diversity, 189 IBLA 117, 126 (2016). On July 16, 2020, the Council on Environmental Quality published revisions to its NEPA regulations, which are scheduled to take effect on September 14, 2020. See Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304 (July 16, 2020) (final rule). 98 Sierra Club v. FERC, 867 F.3d 1357, 1371 (D.C. Cir. 2017) (quotation marks omitted); accord Sierra Club v. U.S. Forest Serv., 857 F. Supp. 2d 1167, 1174 (D. Utah 2012). 99 Sierra Club v. U.S. Dep’t of Energy, 867 F.3d 189, 198 (D.C. Cir. 2017) (quotation marks and citations omitted). 100 Mont. Envt’l Info. Ctr. v. U.S. Of’c of Surface Mining, 274 F. Supp. 3d 1074, 1091 (D. Mont. 2017) (quotation marks omitted).

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The Council on Environmental Quality’s NEPA regulations state: “Impacts shall be discussed in proportion to their significance. There shall be only brief discussion of other than significant issues.”101 In other words, even as to impacts that are reasonably foreseeable, the EIS “need only furnish such information as appears to be reasonably necessary under the circumstances for evaluation of the project.”102

The coal transportation claim

WildEarth alleges that “[a]lthough the BLM acknowledges that coal from the SUFCO mine will be transported, the [Final SEIS] is silent as to how these transport activities will affect the human environment.”103 According to WildEarth, BLM was obligated to disclose “how much truck traffic will occur, what the reasonably foreseeable impacts of this truck traffic will be, . . . and what other related impacts would be expected (e.g., to water, to wildlife, etc.).”104 In WildEarth’s telling, the Final SEIS neglects to address these issues, and instead implies that “the reasonably foreseeable transportation impacts [are] nonexistent.”105

BLM responds, on appeal, by arguing first that “the location of combustion for the Greens Hollow coal is not reasonably foreseeable,” and second that the agency satisfied its NEPA obligations by discussing existing emissions from truck hauling of coal from the SUFCO Mine.106 Canyon Fuel goes further, asserting that “[b]ecause BLM cannot predict end users of the Greens Hollow coal with any level of certainty, the downstream effects of transport, combustion, and export are too speculative to be reasonably foreseeable.”107

The Final SEIS refutes Canyon Fuel’s contention that “BLM cannot predict end users of the Greens Hollow coal with any level of certainty.” The EIS discloses that “[t]he existing SUFCO mine supplies about four million tons of coal per year to the Hunter

101 40 C.F.R. § 1502.2(b); see Protect Our Cmtys. Found. v. Jewell, 825 F.3d 571, 583 (9th Cir. 2016) (applying this regulation); Hillsdale Envt’l Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d 1156, 1177 (10th Cir. 2012) (same). 102 See Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1251 (10th Cir. 2011) (quotation marks omitted). 103 WildEarth SOR, supra note 20, at 17. 104 Id. 105 Id. at 18. 106 BLM Answer, supra note 34, at 12, 16-17. 107 Canyon Fuel Answer, supra note 42, at 11.

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Power Plant,”108 representing over fifty percent of the mine’s output.109 It also discloses that “[t]he remainder of the coal is transported to a rail head in Levan, Utah, and from there to multiple end users.”110 Turning to the proposed Greens Hollow lease sale, the EIS states that the current pattern under which “[t]he majority of the coal . . . is trucked to the Hunter Power Plant” will likely “be extended under the action alternative.”111 The same is true, according to the Final SEIS, of “the current truck traffic to haul [the remainder of the] coal to . . . a central loading point for rail loading.”112 The Final SEIS therefore establishes that it is reasonably foreseeable (though not certain) that most of the coal produced from the Greens Hollow Tract will be trucked to the Hunter Power Plant, with the remainder trucked to Levan, Utah for further transportation by rail. We therefore reject the contention that air pollution impacts from truck-based coal transportation are speculative.113

At the same time, we reject WildEarth’s contention that the Final SEIS fails to take a hard look at these impacts, or implies that they are “nonexistent.”114 The Final SEIS

108 Final SEIS, supra note 4, at 145. 109 See id. at 144-145 (disclosing that the SUFCO mine is currently permitted to produce 10 million tons of coal annually, and actually produces 7 million tons); see also id. at 13, 16 (estimating that the action alternatives would result in the production of 55.7 to 56.6 million tons of coal over slightly less than 9 years). 110 Id. at 145. 111 Id. at 287. 112 Id.; see also id. at 286 (“If existing contracts are extended and the proponent is the successful bidder, it is likely that the majority of the coal would continue to be delivered to the Hunter Power Plant with the remainder transported to multiple end users.”); id. at 145 (concluding, based on the existing relationships, that “public demand for coal from the SUFCO Mine is already established,” while noting that “[t]he ultimate consumption of future coal produced is subject to change”); BLM ROD, supra note 6, at 13 (“Like the coal from the existing mine, the Greens Hollow Tract would allow the winning bidder to continue supplying low sulfur compliance coal to power plants in Utah for generating electricity and other uses.”). 113 See Mont. Envt’l Info. Ctr., 274 F. Supp. 3d at 1092-1093 (finding that impacts from coal transportation were sufficiently certain where the agency identified probable destinations in four countries across three continents); see also S. Fork Band Council of W. Shoshone of Nev. v. U.S. Dep’t of the Interior, 588 F.3d 718, 725 (9th Cir. 2009) (“[T]he air quality impacts associated with transport and off-site processing of the five million tons of refractory ore are prime examples of indirect effects that NEPA requires be considered.”). 114 WildEarth SOR, supra note 20, at 18.

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discloses that “[a]ir quality in the area is affected by emissions from . . . trucks used in hauling the coal,” in the context of a broader description of existing air quality impacts in the area of the mine.115 It then quantifies, for five categories of pollutants, the total annual “emission rates for the existing mining operation,” which include emissions due to “Vehicular Traffic/Haul Roads Paved and Unpaved.”116 Although the document does not specify what fraction of the total emissions from existing mining operations results from truck hauling specifically, it does reveal that the total emissions from existing mining operations are at least an order of magnitude smaller than the emissions from other sources in the area of the mine, including the Hunter Power Plant itself.117

The Final SEIS then forecasts that overall air quality in the area of the mine, as measured in several different ways, would be generally similar under the action alternatives as it is today.118 Regarding emissions from trucking specifically, the document notes that these emissions have declined over time because “[c]onstruction of the Quitchupah Creek Road has greatly reduced truck hauling distance between the mine entry and State Highway 10,” and that in the future, “emissions would likely continue at current levels with the exception of a probable reduction in sulfur emissions due to new sulfur standards for diesel fuel.”119 Taken together, these disclosures constitute a reasonable “hard look” at air quality impacts from truck-based coal transportation.120

WildEarth expresses, on appeal, “particular[] concern[]” over BLM’s alleged “fail[ure] to adequately disclose air quality impacts related to locomotive traffic, including greenhouse gas emissions and fugitive coal dust from train cars.”121 WildEarth’s

115 Final SEIS, supra note 4, at 140. 116 Id. at 283. 117 Compare id. with id. at 140. 118 See id. at 284-285. 119 See id. at 287; accord id. at D-36. 120 See 40 C.F.R. § 1502.2(b); Protect Our Cmtys. Found., 825 F.3d at 583 (“Even though the agency could have included more detailed discussion of noise impacts or collected further information, its existing analysis did not impermissibly misconstrue the existing data or force the public and policymakers to speculate concerning projected environmental effects.”); Hillsdale Envt’l Loss Prevention, 702 F.3d at 1177 (“[The agency’s] decision to focus its analysis on . . . the primary sources of air pollution at the intermodal facility . . . was not arbitrary and capricious.”); Pac. Coast Fed’n of Fishermen's Ass’ns v. Blank, 693 F.3d 1084, 1102 (9th Cir. 2012) (“These discussions may be less robust than the discussions of socioeconomic effects, but NEPA only requires agencies to discuss impacts in proportion to their significance.” (quotation marks omitted)). 121 WildEarth SOR, supra note 20, at 18.

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comments on the draft supplemental EIS devote parts of two sentences to potential air quality impacts from both truck- and train-based coal transportation.122 Unlike truck hauling, however, train hauling receives little mention in the Final SEIS as a source of air quality impacts. The EIS notes that currently, the coal that is not trucked to the Hunter Power Plant “is transported to a rail head in Levan, Utah, and from there to multiple end users,”123 and lists “trains” as one of several “[o]ther potential local sources of air pollution” near the mine.124

While BLM could have done more to address this issue in the Final SEIS, neither WildEarth’s brief nor its cursory comments on the draft supplemental EIS supply the “objective proof”125 needed to show that further analysis was “reasonably necessary under the circumstances for evaluation of the project.”126

Finally, it is not true, as WildEarth claims, that the Final SEIS “assert[s] that . . . the transportation impacts of issuing the Greens Hollow coal lease would be the same as if the agency adopted a No Action Alternative.”127 As noted above, the Final SEIS asserts that coal transportation impacts under the action alternatives would be generally similar to coal transportation impacts under the status quo (give or take changes to diesel fuel sulfur standards). The Final SEIS does not state that these impacts are the same as under the no action alternative, however. To the contrary, the Final SEIS states the following regarding the no action alternative:

Air emissions from transportation of coal to various power plants would continue; however, travel routes and distances may vary depending on the proximity of the coal source to the ultimate end users. The No Action

122 See WildEarth Draft SEIS Comments, supra note 29, at 18 (“Coal transport via trucks or rail, both of which are used to transport Greens Hollow Coal, for hundreds and perhaps thousands of miles, will result in coal dust escaping train cars and being distributed over wide areas, including in streams, and will result in the combustion of diesel fuel (with attendant air pollution) to move the coal. Various computer models exist to evaluate likely impacts of coal dust during transport.” (citation omitted)). 123 Final SEIS, supra note 4, at 145. 124 Id. at 140. 125 Confed. Tribes of the Goshute Reservation, 190 IBLA at 403. 126 Wyoming, 661 F.3d at 1251 (quotation marks omitted). 127 WildEarth SOR, supra note 20, at 17-18; see also id. at 18 (“[T]here is no basis for this assumption that would indicate the impacts under the No Action Alternative would be exactly the same as under the proposed action.”).

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Alternative [may] result in haul routes that are much further from the end user destination resulting in greater environmental impacts.[128]

WildEarth does not argue on appeal that this analysis is substantively erroneous.129 Therefore, it is enough for purposes of this appeal to observe that BLM did not assume that the impacts under the action and no action alternatives would be the same.

For these reasons, we conclude that impacts from coal transportation, particularly ones related to truck hauling, were reasonably foreseeable, but that BLM did not fail to take the requisite “hard look” at these foreseeable impacts.

The coal combustion claim

WildEarth also argues that BLM erred by failing to address the air quality impacts of burning the coal produced from the Greens Hollow Tract, particularly at the Hunter Power Plant and other nearby plants in Utah.130 As with the coal transportation claim, the respondents devote most of their briefs to arguing that these impacts are “speculative” because the SUFCO Mine currently supplies an array of customers and the Hunter Power Plant purchases coal from an array of suppliers, and because these relationships between supplier and customer may change over time.131

Both WildEarth and the respondents agree that in order to decide whether NEPA required BLM to address these impacts, we must ask whether “‘but for’ the proposed expansion, the coal combustion-related impacts would not occur.”132 We find the “but for” framing unhelpful in this case. Because BLM’s decision to proceed with the lease sale is a legal precondition for coal to be extracted from the Greens Hollow Tract, there is no question that “but for” BLM’s decision, this coal would not be burned, and the pollutants it contains would not be emitted. The Supreme Court, however, has emphasized that “a ‘but for’ causal relationship is insufficient to make an agency responsible for a particular effect under NEPA and the relevant regulations,” and that instead, “NEPA requires ‘a reasonably close causal relationship’ between the environmental effect and the alleged

128 Final SEIS, supra note 4, at 284. 129 See WildEarth SOR, supra note 20, at 18. 130 Id. at 13. 131 BLM Answer, supra note 34, at 18-22; Canyon Fuel Answer, supra note 42, at 11-14. 132 WildEarth SOR, supra note 20, at 11 (citing Diné Citizens Against Ruining Our Env’t v. U.S. Of’c of Surface Mining Recl. & Enf. (Diné CARE), 82 F. Supp. 3d 1201, 1212 (D. Colo. 2015), vacated as moot, 643 Fed. Appx. 799 (10th Cir. 2016)); accord BLM Answer, supra note 34, at 18-22; Canyon Fuel Answer, supra note 42, at 11.

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cause.”133 The key to determining whether this “reasonably close causal relationship” exists is the same as the key to determining whether the impacts are “reasonably foreseeable”: whether the impacts are “sufficiently likely to occur that a person of ordinary prudence would take [them] into account in reaching a decision.”134

Applying this standard, we conclude (as we did with the transportation claim) that a reasonably close causal relationship existed between the decision to hold the lease sale and the combustion of the coal, and that BLM could reasonably have foreseen that most of the coal extracted from the Greens Hollow Tract would end up at the same local power plants that consume most of the coal produced from the SUFCO Mine.135

At the same time, we conclude (as we did with the transportation claim) that BLM did foresee this eventuality, and did not “refuse[] to consider” its impacts.136 To the contrary, the EIS “acknowledges that the burning of the coal is an indirect impact that is a reasonable progression of the mining activity.”137 It discloses the annual emissions of six categories of pollutants from Hunter and other area plants,138 and the plants’ statuses as regulated acid rain sources.139 It also describes the impacts of these emissions on air quality conditions in the area.140 Finally, the document states that “[i]f existing contracts are extended and [Canyon Fuel] is the successful bidder, it is likely that the majority of

133 U.S. Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 767 (2004) (quoting Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774 (1983)). 134 See Sierra Club v. FERC, 827 F.3d 36, 47 (D.C. Cir. 2016) (quotation marks omitted); accord Sierra Club v. U.S. Dep’t of Energy, 867 F.3d at 198. 135 See also S. Fork Band Council, 588 F.3d at 725 (“[T]he air quality impacts associated with transport and off-site processing of the five million tons of refractory ore are prime examples of indirect effects that NEPA requires be considered.”); Citizens for a Healthy Cmt’y v. U.S. Bureau of Land Mgm’t, 377 F. Supp. 3d 1223, 1236 (D. Colo. 2019) (“Courts with persuasive authority have found that combustion emissions are an indirect effect of an agency’s decision to extract those natural resources.”); Mont. Envt’l Info. Ctr., 274 F. Supp. 3d at 1094 (“That the coal extracted from the mine will be combusted is not so ‘highly speculative’ that any analysis of non-greenhouse gas emissions would be impractical, even if the precise locations of combustion are uncertain.”). 136 WildEarth SOR, supra note 20, at 13. 137 Final SEIS, supra note 4, at 287. 138 Id. at 140; see also id. at 141 (“The Hunter Power Plant . . . emitted over 19,000 tons per year of NOx and over 1,400 tons per year of PM10.”). 139 Id. at 142. 140 Id. at 135-143.

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the coal would continue to be delivered to the Hunter Power Plant.”141 Therefore, at least as to these pollutants, the Final SEIS adequately addresses the reasonably foreseeable impacts of the combustion of coal that will be produced from the Greens Hollow Tract.

On appeal, WildEarth zeroes in on two pollutants that the Final SEIS largely ignores: mercury and selenium.142 WildEarth argues on appeal that unlike the other pollutants, these two pollutants accumulate in ecosystems over time, so that merely disclosing that existing emissions would continue does not adequately address the incremental impact that the mercury released from the Greens Hollow coal would have on nearby ecosystems, including, in particular, the Colorado River watershed.143

WildEarth is right that the Final SEIS does not address mercury and selenium emissions from local combustion of Greens Hollow coal. However, WildEarth did not raise this issue in its comments on the draft supplemental EIS. The sole reference to mercury in those comments relates to concerns over mercury emissions from the combustion of Greens Hollow coal that may be exported to Asia.144 The comments do not mention selenium, or pollutant accumulations in the Colorado River watershed. Because WildEarth did not raise this issue in its comments on the draft supplemental EIS, despite having the opportunity to do so, we do not consider it on appeal.145

The coal export claim

WildEarth also argues that BLM “ran afoul of NEPA by failing to analyze and assess impacts related to international coal export activities.”146 Specifically, WildEarth argues that “BLM clearly could have analyzed the potential impacts of hauling coal from

141 Id. at 286; see also id. at 287 (“The Hunter Power Plant or other users of the coal (refer to Chapter 3 for emissions and authorizations) would likely continue as one end user of coal either from the proposed Greens Hollow tract or from another source.”). 142 WildEarth SOR, supra note 20, at 15-17. 143 Id. at 13-17; accord Diné CARE, 82 F. Supp. 3d at 1215. 144 See WildEarth Draft SEIS Comments, supra note 29, at 20; Final SEIS, supra note 4, at D-65, D-68, D-78. 145 See 43 C.F.R. § 4.410(c) (“Where the Bureau . . . provided an opportunity for participation in its decisionmaking process, a party . . . may raise on appeal only those issues: . . . [r]aised by the party in its prior participation; or . . . [t]hat arose after the close of the opportunity for such participation.”); Great Basin Res. Watch, 185 IBLA 1, 15- 17 (2014) (applying this rule). 146 WildEarth SOR, supra note 20, at 19.

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Utah to California, the impacts of unloading coal from trains to barges at port facilities, and the impacts of shipping coal through the Bay Area.”147

Framed in this manner, WildEarth’s coal export claim is a variation on its coal transportation claim.148 To the extent that this claim relates to impacts from ongoing domestic train-based coal transportation, we have already found that BLM took the requisite “hard look” at domestic transportation impacts as a whole.

As for the other impacts listed by WildEarth – “the impacts of unloading coal from trains to barges at port facilities, and the impacts of shipping coal through the Bay Area”149 – WildEarth has not carried its burden of showing that BLM erred by not addressing them. The Final SEIS acknowledges that some coal produced from the SUFCO Mine, or from other mines in Utah owned by the same corporate entity, is ultimately sold “to power plants outside the U.S.,” but states that “coal from the Greens Hollow tract is not expected to be exported in significant quantities (depending on market forces).”150 The Final SEIS then states that “[f]uture domestic or export distribution beyond current contract terms would be speculative in a changing US market and the open leasing process.”151 Although WildEarth points on appeal to evidence showing that the SUFCO Mine’s corporate owner views coal exports as a business opportunity,152 this evidence does not amount to “objective proof”153 that BLM erred in its assessment that “coal from the Greens Hollow tract is not expected to be exported in significant quantities.”154 And in the absence of “potential significant environmental consequences,” BLM is under no obligation to discuss impacts from coal exports.155 Because WildEarth has not demonstrated that significant impacts from coal exports are “sufficiently likely to occur that a person of ordinary prudence would take [them] into account,”156 we hold that BLM did not err by not analyzing those impacts.

147 Id. at 20. 148 See id. at 19 (describing this claim as “[r]elated to” the coal transportation claim). 149 Id. at 20. 150 See Final SEIS, supra note 4, at D-34. 151 See id. 152 WildEarth SOR, supra note 20, at 19-20. 153 See Confed. Tribes of the Goshute Reservation, 190 IBLA at 403. 154 See Final SEIS, supra note 4, at D-34 (emphasis added). 155 See Confed. Tribes of the Goshute Reservation, 193 IBLA at 355; see also 40 C.F.R. § 1502.2(b) (“Impacts shall be discussed in proportion to their significance.”). 156 Sierra Club v. FERC, 867 F.3d at 1371 (quotation marks omitted); see Sierra Club v. U.S. Forest Serv., 857 F. Supp. 2d at 1174 (same).

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The climate change claim

WildEarth’s final NEPA claim alleges that BLM “overlooked . . . the climate impacts that would result from direct and indirect emissions of greenhouse gas,” and “denied that these emissions would be significant in the context of their contribution to global climate change.”157 WildEarth challenges BLM’s position that “[t]he climate change research community has not yet developed tools specifically intended for evaluating or quantifying end-point impacts attributable to the emissions of [greenhouse gases] from a single source,”158 asserting that this position “is flatly unsupported.”159

The Final SEIS discusses observed and anticipated changes to the climate of Utah, as well as the basic science of anthropogenic climate change.160 It quantifies the annual emissions of various greenhouse gases from current operations at the SUFCO Mine,161 and the emissions of various greenhouse gases per ton of coal burned at the Hunter Power Plant (which consumes four out of the seven million tons of coal produced annually by the SUFCO Mine).162 Finally, the document quantifies the annual greenhouse gas emissions that it expects to result from both mine operations and downstream combustion of the Greens Hollow coal, and compares these emissions to global annual emissions from coal mine operations and fossil fuel combustion.163

While the law surrounding climate change and NEPA is unsettled, and is likely to continue to evolve over time, a few basic parameters are currently clear. When a Federal action will result in reasonably foreseeable emissions of significant quantities of greenhouse gases, Federal courts require the agency either to quantify those emissions, or else to explain why they cannot be quantified.164 Beyond this baseline requirement,

157 WildEarth SOR, supra note 20, at 20-21. 158 Final SEIS, supra note 4, at 285. 159 WildEarth SOR, supra note 20, at 21. 160 Final SEIS, supra note 4, at 143-144. 161 Id. at 143; see also id. at 144 (providing a cross-reference to these emission figures in the context of the document’s discussion of climate change). 162 Id. at 144-145. 163 Id. at 286. 164 See Sierra Club v. FERC, 867 F.3d at 1374 (“We conclude that the EIS . . . should have either given a quantitative estimate of the downstream greenhouse emissions that will result from burning the natural gas that the pipelines will transport or explained more specifically why it could not have done so.”); accord WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 75 (D.D.C. 2019); Citizens for a Healthy Cmt’y, 377 F. Supp. 3d at 1237;

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Federal courts generally expect Federal agencies to do something more – although the exact nature of this “something more” is not always clearly spelled out. Many decisions suggest that an agency should compare the volume of greenhouse gas emissions from the proposed action to benchmarks such as local, state-wide, national, or global emissions, and provide a general qualitative discussion of climate change science.165 This Board, too, has upheld an analysis that took a similar approach of comparing to benchmarks and

San Juan Citizens All. v. U.S. Bureau of Land Mgm’t, 326 F. Supp. 3d 1227, 1241 (D.N.M. 2018); W. Org. of Res. Councils v. U.S. Bureau of Land Mgm’t, No. CV 16-21-GF-BMM, 2018 U.S. Dist. LEXIS 49635, at *39-40 (D. Mont. Mar. 26, 2018); Wilderness Workshop v. U.S. Bureau of Land Mgm’t, 342 F. Supp. 3d 1145, 1156 (D. Colo. 2018); see also WildEarth Guardians v. Jewell, 738 F.3d 298, 309 (D.C. Cir. 2013) (upholding an EIS that, among other things, “estimated the greenhouse gas (GHG) emissions that occurred at the Antelope Mine in 2007 and projected emissions for a typical year of operations if the West Antelope II tracts are also leased”); Powder River Basin Res. Council, 180 IBLA 119, 133 (2010) (similar). 165 See WildEarth Guardians v. Zinke, 368 F. Supp. 3d at 77 (“[O]n remand, if BLM may reasonably quantify downstream [greenhouse gas] emissions, it must place those emissions in the context of local and regional oil and gas consumption. These quantitative analyses, combined with a robust qualitative discussion of local, regional, and national climate change, would satisfy NEPA’s hard look requirement.”); see also Sierra Club v. FERC, 867 F.3d at 1374 (“Quantification would permit the agency to compare the emissions from this project to emissions from other projects, to total emissions from the state or the region, or to regional or national emissions-control goals. Without such comparisons, it is difficult to see how FERC could engage in informed decision making with respect to the greenhouse-gas effects of this project, or how informed public comment could be possible.” (quotation marks omitted)); WildEarth Guardians v. Jewell, 738 F.3d at 309 (similar); Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1139 (9th Cir. 2011) (“[T]he effect of greenhouse gases on climate is a global problem; a discussion in terms of percentages is therefore adequate for greenhouse gas effects.”); Citizens for a Healthy Cmt’y, 377 F. Supp. 3d at 1238-1239 (upholding an EIS that “looked at statewide emissions levels from emitting coal-fired power plants in Colorado and provided a comparative assessment, . . . provided a qualitative analysis of climate change and the role played by [greenhouse gas] emissions, . . . and . . . predict[ed] that 146 wells in the Unit and the expected wells in the 25-well Project would respectively produce 44,389 and 24,706 metric tons of [greenhouse gas] emissions per year” (citations omitted)); accord W. Org. of Res. Councils, No. CV 16-21- GF-BMM, 2018 U.S. Dist. LEXIS 49635, at *43-44; WildEarth Guardians v. Jewell, No. 1:16-CV-00605-RJ, 2017 U.S. Dist. LEXIS 131624, at *37; WildEarth Guardians v. Bureau of Land Mgm’t, 8 F. Supp. 3d 17, 35 (D.D.C. 2014).

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providing a qualitative discussion.166 In a few cases, however, agencies have gone further, or been told to go further, and attempted not just to quantify the volume of emissions from the proposed project and to compare those emissions to local, regional, or global benchmarks, but also to quantify the impacts of those anticipated greenhouse gas emissions.167

In this case, BLM estimated both the direct annual emissions of greenhouse gases from mine operations and the indirect annual emissions from downstream combustion of the Greens Hollow coal.168 BLM compared these annual direct and indirect greenhouse gas emissions from the proposed lease to corresponding annual global emissions (though not to local, state-wide, or national emissions),169 and discussed in very general terms the observed and anticipated changes to the climate in Utah.170 BLM therefore satisfied the benchmark-and-qualitative-discussion approach that this Board and some courts have accepted.

WildEarth argues on appeal that BLM erred by not going further and quantifying the impacts of greenhouse gas emissions. The Final SEIS declined to do so, stating that “[t]he tools necessary to quantify incremental climatic impacts of specific activities . . . are presently unavailable.”171 BLM cited in support of this statement a 2008 letter from the U.S. Environmental Protection Agency to two other federal agencies.172

WildEarth challenges the accuracy of this statement, pointing to at least one tool for quantifying the impacts of greenhouse gas emissions: the social cost of carbon methodology, which “estimat[es] the economic damages associated with a small increase in carbon dioxide (CO2) emissions” and “represents the value of damages avoided for a small emission reduction.”173 WildEarth also alludes to the existence of other such tools,

166 See Powder River Basin Res. Council, 180 IBLA at 123, 133-134. 167 See Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1221 (9th Cir. 2008) (“Without some analysis, it would be impossible for [the agency] to know . . . whether a change in [greenhouse gas] emissions of 0.2% or 1% or 5% or 10% . . . will be a significant step toward averting the tipping point and irreversible adverse climate change.” (quotation marks omitted)); San Juan Citizens All., 326 F. Supp. 3d at 1248 (requiring analysis of the impact of the anticipated greenhouse gas emissions). 168 See Final SEIS, supra note 4, at 143, 286. 169 Id. at 286. 170 Id. at 143-144. 171 Id. at 285. 172 Id. at 285, D-34 to D-35, D-61. 173 WildEarth SOR, supra note 20, at 22 (quotation marks omitted).

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but does not specifically discuss any.174 In response, BLM and Canyon Fuel argue that the social cost of carbon methodology is controversial and unreliable, and that courts have not generally required agencies to apply it under NEPA.175

As an initial matter, we reject the rationale relied on by BLM in the Final SEIS, according to which “[t]he tools necessary to quantify incremental climatic impacts of specific activities . . . are presently unavailable.”176 All the parties agree that tools for quantifying incremental climate impacts, such as the social cost of carbon methodology, were available at the time of BLM’s decision, although they disagree on whether the tools were appropriate for use in this context.177 By relying on a 2008 letter from the U.S. Environmental Protection Agency, BLM missed out on seven years’ worth of developments in the fast-changing world of climate science and policy.178

Nevertheless, we reject WildEarth’s challenge to BLM’s decision not to apply the social cost of carbon methodology in this case.179 WildEarth did not raise the issue of quantifying the impacts of greenhouse gas emissions (as distinct from quantifying those emissions themselves) during the process leading up to the Final SEIS, but instead waited until its comments on the Forest Service’s draft decision to suggest that the agencies apply the social cost of carbon methodology.180 Because WildEarth did not raise this issue “in its prior participation” in BLM’s decision-making process, but only in its participation in the Forest Service’s process, it has waived the issue in this appeal.181

174 Id. 175 BLM Answer, supra note 34, at 26-30; Canyon Fuel Answer, supra note 42, at 17-20; see also 350 Mont. v. Bernhardt, No. CV 19-12-M-DWM, 2020 U.S. Dist. LEXIS 40643, at *19-20 (D. Mont. Mar. 9, 2020) (accepting the agency’s finding “that the [methodology] is too uncertain and indeterminate to be useful to the [NEPA] analysis” as sufficient). 176 See Final SEIS, supra note 4, at 285. 177 See, e.g., id. at D-65 (excerpting a public comment from Canyon Fuel stating that use of the social cost of carbon methodology “is not required by any law or regulation”); accord Canyon Fuel Answer, supra note 42, at 17. 178 See San Juan Citizens All., 326 F. Supp. 3d at 1249 (“[I]n considering the potential impacts of the full amount of greenhouse gas emissions . . . , BLM must not rely on outdated scientific tools and analyses.”). 179 See Seldovia Native Ass’n, 173 IBLA 71, 77 (2007) (“The Board is not limited to reasons or theories asserted in the decision under review or in the parties’ filings.”). 180 See Forest Service Comment Response, supra note 33, at 3-4; Canyon Fuel Answer, supra note 42, at 17; see generally WildEarth Draft SEIS Comments, supra note 29. 181 See 43 C.F.R. § 4.410(c)(1); Great Basin Res. Watch, 185 IBLA at 15-17.

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We therefore conclude that WildEarth has not demonstrated that BLM failed to take “a hard look at all of the potential significant environmental consequences of the proposed action.”182

WILDEARTH’S NOTICE OF SUPPLEMENTAL AUTHORITY

On January 28, 2018, WildEarth filed a notice of supplemental authority, directing the Board’s attention to a supplemental environmental assessment (SEA) prepared by OSMRE.183 As explained above, OSMRE participates in the surface mining permitting process on behalf of the federal government.184 As part of this role, OSMRE decided to adopt the Final SEIS prepared by BLM and the Forest Service, but to supplement it with an SEA.185 BLM and the Forest Service served as cooperating agencies for OSMRE’s SEA.186

In its notice of supplemental authority, WildEarth makes two arguments. First, WildEarth asserts that “the completion of the [SEA] indicates the BLM may be attempting to exercise decisionmaking authority over matters directly related to the subject of this appeal,” even though that subject “is no longer under the agency’s jurisdiction.”187 Second, WildEarth argues that BLM’s participation in the SEA as a cooperating agency “indicates that . . . BLM . . . consider[s] the [Final SEIS] to be inadequate under NEPA.”188

A notice of supplemental authority is a “procedural device by which a party formally advises the Board and parties of authorities or developments that are material to, and that could be dispositive of, a pending appeal or issues presented therein.”189 The materials put before the Board through such a notice may be “matters of which the Board may take official or administrative notice,” but they must be ones “that have come to a party’s attention after that party’s brief or pleading has been filed,” and could not

182 See Confed. Tribes of the Goshute Reservation, 193 IBLA at 355 (quotation marks omitted). 183 WildEarth NSA, supra note 43. 184 Id. at 2; BLM ROD, supra note 6, at 4. 185 See OSMRE SEA, supra note 44, at 1. 186 Id. at 3. 187 See WildEarth NSA, supra note 43, at 3. 188 See id. 189 W. Watersheds Project, 184 IBLA 106, 115 (2013).

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have been presented to BLM before the agency made its decision.190 The materials must be relevant to legal arguments addressed in the parties’ briefs.191

The document attached to WildEarth’s notice – the OSMRE SEA – is one that we can take official notice of,192 and that was published after WildEarth filed its statement of reasons. Therefore, WildEarth’s notice is proper to the extent that the SEA is “material to, and . . . could be dispositive of,” the issues raised in this appeal.193

Addressing WildEarth’s first argument, the OSMRE SEA does not demonstrate that BLM is currently “attempting to exercise decisionmaking authority over matters” that are outside the agency’s jurisdiction.194 BLM’s participation in the OSMRE SEA is not a “decision” in itself, and as such, does not directly implicate BLM’s decision-making authority.195 If and when BLM exercises such decision-making authority, a party adversely affected by BLM’s decision may appeal that decision, and argue before this Board that BLM acted without jurisdiction.196 Until such time, however, it is this Board that lacks jurisdiction to review BLM’s participation in the SEA.197

Turning to WildEarth’s second argument, the question of whether the OSMRE SEA demonstrates that BLM, in the Final SEIS, failed to adequately address “potentially

190 Id. at 116. 191 Id. at 116-117. 192 See 43 C.F.R. § 4.24(b) (“Official notice may be taken of the public records of the Department of the Interior . . . .”). 193 W. Watersheds Project, 184 IBLA at 115. 194 See WildEarth NSA, supra note 43, at 3. 195 See Jeffrey O. Roche v. U.S. Bureau of Land Mgm’t, 195 IBLA 266, 271 (2020) (holding that to qualify as a “decision,” an action must “take[] or prohibit[] some action that affects the legal rights of some person” (quotation marks omitted)). 196 See Sojitz Energy Venture, Inc., 193 IBLA 1, 3 (2018) (stating that “[w]hen a party appeals a bureau decision to the Board, jurisdiction over the subject of the decision is transferred to the Board,” while noting that the bureau nonetheless retains jurisdiction “to make decisions that are functionally independent from the subject of the appeal” (quotation marks omitted)); accord Chipmunk Grazing Ass’n, 188 IBLA 35, 43 (2016). 197 See Colvin & Son, LLC, 189 IBLA 179, 183 (2017) (“[W]e have authority to review certain ‘decisions rendered by Departmental officials.’ The existence of a ‘decision’ is key.”); see also Roche, 195 IBLA at 274 (“[W]e do not possess ‘supervisory authority over BLM . . . .’” (quoting Randall G. Knowles, 187 IBLA 99, 101 (2016)).

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significant environmental impacts”198 is material to the issues raised in this appeal. However, the SEA does not demonstrate such a failure on the part of BLM.

First, the fact that BLM participated in OSMRE’s SEA does not in itself “indicate that . . . BLM . . . consider[s] the [Final SEIS] to be inadequate under NEPA.”199 The decision to prepare an SEA was OSMRE’s; once OSMRE decided to do so, NEPA regulations establish an expectation that BLM, as an agency with “jurisdiction by law or special expertise with respect to any environmental impact involved in [the] proposal,” would serve as a cooperating agency.200

Second, several developments occurred between the date of BLM’s decision to proceed with the lease sale and the date of OSMRE’s SEA that potentially enabled OSMRE to evaluate the environmental impacts of the proposed mining permit with greater specificity than BLM had been able to evaluate the impacts of the proposed lease. These included BLM proceeding with the lease sale and awarding the lease to Canyon Fuel, the incumbent owner of the SUFCO Mine,201 as well as the preparation of refined estimates of annual coal production from the lease.202 Because these developments occurred after BLM issued the decision that is before us in this appeal, OSMRE’s choice to conduct additional environmental analysis in light of these developments before proceeding with its role in the mine permitting process does not prove that the analysis that BLM previously conducted in support of its leasing decision was inadequate.

Finally, the SEA itself does not show that the Final SEIS “failed to address . . . potentially significant environmental impacts” resulting “from the transportation of coal to the Hunter coal-fired power plant and emissions from coal combustion, including mercury emissions.”203 As the SEA notes, one possible outcome of an SEA is a “Finding of No New Significant Impact,” which determines that “no significant impact [exists] other

198 See WildEarth NSA, supra note 43, at 2-3 (citations omitted). 199 See id. at 3. 200 See 40 C.F.R. §§ 1501.6(b)(1), 1508.5; BLM Response to NSA, supra note 40, at 5-6; see also Birch Creek Ranch LLC, 184 IBLA 307, 322-323 n.16 (2014) (“BLM’s issuance of [a new environmental assessment] is not an ‘explicit acknowledgment by the BLM that a new environmental analysis was required . . . ’ as asserted by [the appellant]. . . . As we have stated, whether additional environmental analysis is necessary before an action can be implemented turns not on the label applied to BLM’s NEPA documentation, but on whether appellants have shown an impact that was not considered.”). 201 See OSMRE SEA, supra note 44, at 3. 202 See id. at 1, 5. 203 WildEarth NSA, supra note 43, at 2-3 (citations omitted).

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than those already disclosed and analyzed in the EIS.”204 With regard to emissions from truck hauling, the SEA reaches just this conclusion, examining anticipated emissions of five pollutants before determining that those emissions would be “negligible.”205

Turning to non-mercury emissions from coal combustion, the SEA estimates annual emissions for six pollutants by using the Hunter Power Plant as a “representative plant,” and extrapolating that plant’s maximum permitted annual emissions upward to model a scenario in which that plant consumed the entire projected output of the Greens Hollow Tract.206 As noted above, the Final SEIS also discloses the annual emissions of various pollutants from the Hunter Power Plant, as well as the fraction of the coal produced from the SUFCO Mine that is consumed at Hunter,207 and discloses that the Hunter Power Plant is likely to continue to consume the majority of the coal produced from the Greens Hollow Tract.208 Compared to these disclosures, the additional arithmetic step taken by the SEA of extrapolating the Hunter Power Plant’s emissions upwards to model a scenario in which it consumed all of the Greens Hollow coal does not contribute so much to the analysis that it proves that BLM, in the Final SEIS, failed to take a hard look at emissions of these pollutants.

Finally, to address mercury emissions, the SEA first estimates the total mercury present in the coal that would be mined under the lease, and then concludes that “it is not possible to determine how much mercury emissions would be deposited into surface water or where it would be deposited as an indirect impact of mining the Greens Hollow Federal Coal Lease Tract.”209 Because WildEarth waived this issue by not raising it in the process that led to BLM’s Final SEIS, we need not decide whether this additional analysis reveals any error in the Final SEIS’s treatment of the issue.

We have therefore considered WildEarth’s notice of supplemental authority and find that it does not alter the conclusions set forth previously.

204 OSMRE SEA, supra note 44, at 1 & n.1 (citing 43 C.F.R. § 46.140(c)). 205 See id. at 13-14; see also id. at 9 (defining a “negligible” impact as an impact “in the lower limit of detection . . . that could cause an insignificant change or stress to an environmental resource or use”). 206 Id. at 15-16. 207 See Final SEIS, supra note 4, at 140-141, 144-145. 208 See id. at 286. 209 See OSMRE SEA, supra note 44, at 16.

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CONCLUSION

Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior,210 we affirm BLM’s August 12, 2016, decision to proceed with the Greens Hollow Tract coal lease sale.

I concur:

210 43 C.F.R. § 4.1.

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