The Coal Moratorium Is Under Review - What Now?

May 3, 2019

In 2016, the Obama administration halted new leasing of coal on federal lands with a goal to reexamine the environmental impacts of the program. Just a year later, the Trump administration lifted that moratorium. In a report, Interior Department secretary Ryan Zinke wrote, "given the critical importance of the Federal coal leasing program to energy security, job creation, and proper conservation stewardship, this Order directs efforts to enhance and improve the Federal coal leasing program." 

  

That's where the story ended... until now. Brian Morris, Judge for the U.S. District Court for the District of Montana Great Falls Division, wrote there should have been environmental analysis before re-opening the program. The state of Wyoming was a defendant in the case. Sam Kalen, University of Wyoming College of Law Centennial Distinguished Professor of Law, helps explain what the decision means.

Sam Kalen: I think that it's a judgment that I like the outcome personally because I do think that we do really need to understand what the environmental consequences are of continuing the leasing program as its historically been done. And so one of the key issues in this case was there really a final agency action when you simply just lift a moratorium and that's what the court really had to wrestle with. And I think that there are different, two different ways one could come out of that. This judge found that there was a final agency action and once he did that and that and there was review that was available then that almost necessitated the second part of his judgment which is that if it's a final agency action both to be able to review it also means there's a final agency action that would trigger the National Environmental Policy Act (NEPA) which means that before you can lift the moratorium that's an action that requires an environmental analysis of what the effects of lifting that moratorium would be.

Cooper McKim: The National Environmental Policy Act or NEPA for those who don't know… it mandates a environmental analysis. Could you explain a little bit more about what it is and why it's important?

SK: It does a couple things, it one announces a national environmental policy that sort of favors making sure that we understand what the environmental impacts of federal agency decisions are. The other thing that NEPA does is it ensures that the public gets to participate in the decision making process. 

CM: So the court said the coal moratorium should not have just been lifted without some sort of environmental analysis given it was determined to be a final agency action. The judge has asked both sides to come up with a joint-proposal for a remedy soon… it seems like the remedy could be doing an environmental analysis of some kind. It could be that the moratorium is re-instituted, or just a new document… right?

SK: What he's likely, or could do, is that he could say that you're not allowed to resume any coal leasing until you finish your environmental analysis. So he could enjoin effectively any future coal leasing that was the subject of the moratorium until the compliance with the National Environmental Policy Act. All the court would likely do in this case is to say before you could lift the moratorium you have to prepare an environmental document that looks at what the direct, indirect and cumulative effects would be of lifting that moratorium. That doesn't dictate what that document will look like. It just requires that that document examine the direct, indirect, and cumulative impacts which would include the greenhouse gas emissions that would flow from lifting the moratorium and allowing leasing to continue. So, that might be the debate about what the remedy will be when he ultimately gets the briefing by the parties on the remedies.

Former Interior Department Secretary Ryan Zinke (left) lifted the coal moratorium back in 2017; Montana district court judge Brian Morris (right) released a ruling the moratorium thaw should have gone through environmental review
Credit Public domain via United States Department of the Interior & United States federal court

CM: And so, again, this is something that Wyoming obviously it's very close to home to think about this coal moratorium and I think for a lot of folks when they see Obama regulatory barriers to coal development this is for foremost in their minds. That's a lot of people this is a very important decision. What does it actually mean. And I guess you know it's hard to say before there's a remedy but there's going to be some kind of impact one way or the other for Wyoming, right?

SK: I mean, when you talk about barriers to coal development, the biggest barriers to coal development have not been on the production side. So, the biggest barriers have been in the marketplace. And coal has lost out in the marketplace. I don't think there's any dispute about what utilities have decided to do and how we look at the changing energy markets today. So, I get a little bit concerned when people say, oh is this going to be a barrier to coal development.

CM: But a lot of people are arguing that it's a SYMBOLIC move. But you're saying - while nothing's set in stone yet. The decision likely won't have to much of an impact on coal here.

SK: I guess I'd be loathe to predict too much but my gut instinct would be that it would have a very minimal impact overall at least in the long term. It might have some ultimately when we look at what the remedies are and we get over these remedy issues in terms of if we were to actually resume leasing with a lot more vigor we're talking about short term anyway. And so I don't know that long term it would have much of an impact at all.

CM: So I know you've mentioned the next step for waiting on the remedy and then eventually they're going to have to decide it. But there's also the aspect of a potential appeal. So, what are the next steps?

SK: After the remedy phase is done what I would expect is that the government might decide that it would like to take it on up to the Court of Appeals. And so that's a possibility. Is it a good go to the Court of Appeals.