Home » Case Summaries » 2016 » Great Basin Resource Watch v. Bureau of Land Management, 844 F.3d 1095 (9th Cir. 2016)

 
 

Great Basin Resource Watch v. Bureau of Land Management, 844 F.3d 1095 (9th Cir. 2016)

 

 

In 2012, the Bureau of Land Management (BLM) approved the Mt. Hope Project (the Project), an open-pit mining operation, partially located on federally owned land in Nevada. Two environmental groups, Great Basin Resource Watch and the Western Shoshone Defense Project (GBRW, collectively), challenged the approval in the United States District Court for the District of Nevada, arguing that BLM’s approval of the project: 1) violated the National Environmental Policy Act[1] (NEPA); 2) violated the Federal Land Policy Management Act[2] (FLPMA); and 3) ignored requirements of the executive order known as Public Water Reserve No. 7 (PWR 7). GBRW initially sought a preliminary injunction to prevent construction of the mine. The district court denied GBRW’s injunction and granted BLM summary judgment,[3] at which point GBRW appealed to the Ninth Circuit. The Ninth Circuit affirmed the district court in part, and reversed and remanded in part. In particular, the court approved BLM’s NEPA mitigation analysis, but found aspects of BLM’s NEPA air pollution analysis and cumulative impact analysis deficient.

The Project operator sought federal approval from BLM for the project in 2006, triggering BLM’s NEPA analysis. In 2011, BLM released its draft environmental impact statement (DEIS), with the final environmental impact statement (FEIS) following in 2012. During both the DEIS and FEIS comment period, GBRW criticized BLM’s impact analysis for failing to consider cumulative project impacts, as well as impacts to air and water quality. When BLM released its record of decision (ROD) adopting the FEIS shortly thereafter, GBRW challenged BLM’s NEPA compliance in district court.

On appeal, the Ninth Circuit reviewed the district court’s grant of summary judgment de novo, and assessed BLM’s NEPA compliance under an arbitrary and capricious standard.[4] To determine if an agency violated NEPA by issuing an allegedly inadequate EIS, the Ninth Circuit employs a “rule of reason,” which requires the court to approve an EIS if the EIS “contains a reasonably thorough discussion” of likely environmental impacts, demonstrating that the agency has taken a “hard look” at the environmental consequences of the agency’s decision.[5]

The Ninth Circuit first held BLM’s analysis of air pollution impacts defective. GBRW argued that BLM failed to adequately determine baseline pollution levels in the affected area before determining the impact the Project would have on air quality. BLM’s DEIS used baseline data from Clark County, Nevada, for certain pollutants, and the state’s “default baseline values” for “unmonitored rural areas” for other pollutants. The FEIS, by contrast, assumed a baseline value of zero for some pollutants based on guidance from Nevada’s Division of Environmental Protection (NDEP), relied on Clark County monitoring data to set baseline values for other pollutants, and adopted data from a national park (where air quality is more heavily protected and, therefore, more pristine) located some 100 miles from the Project site, for still other pollutants.

GBRW challenged BLM’s choice of baseline values. First, GBRW argued that BLM unreasonably selected a national park to establish certain baselines. The Ninth Circuit disagreed, finding that, even though BLM’s baseline estimates may be low as a result of that choice, BLM adequately explained why the national park’s baseline data was accurate enough to provide a reasonable baseline for the Project area. GBRW also challenged BLM’s selection of a zero-baseline value for several pollutants. BLM insisted that a zero-baseline value was appropriate and justified by NDEP’s guidance. The Ninth Circuit found that NDEP’s guidance consisted only of one brief email, which failed to include any scientific rationale for selecting a baseline value of zero. The court explained that unsupported statements about scientifically complex issues like air pollution baselines would not be sufficient in an EIS, and therefore cannot be used to justify decisions made in an EIS. The source of the statement, in this case an “expert” within a relevant state agency, is irrelevant. The Ninth Circuit concluded that BLM could not show that it had taken the requisite “hard look” at air pollution impacts, and remanded back to BLM for further analysis.

Second, the Ninth Circuit found that BLM inadequately assessed the Project’s cumulative impacts. GBRW argued that the FEIS merely mentioned cumulative impacts arising from the Project and other activities near the Project site, rather than discussing those impacts in detail or engaging in quantifiable analysis of those impacts. The Ninth Circuit began by explaining that NEPA’s cumulative impact analysis requires the action agency to take a “hard look” at all actions that, in combination with the action under consideration, might affect the environment. Applying that standard, the court concluded that BLM failed to adequately assess cumulative impacts. While the FEIS identified actions that might factor into a complete cumulative impact analysis, the Ninth Circuit found that the FEIS thoroughly explored certain impacts but not others. Most significantly, the FEIS only cursorily assessed cumulative impacts on air pollution and air quality. The Ninth Circuit’s determination flowed in part from the court’s decision that BLM failed to support its baseline air pollution values, as described above.

Third, the Ninth Circuit rejected two of GBRW’s challenges to BLM’s mitigation measures to reduce the harm caused by the Project, and declined to resolve a third. First, GBRW argued that BLM should create a mitigation plan to reduce water quality impacts caused by a lake that would, over time, form in the open mining pit. The FEIS proposed to restrict access to the lake, and found a “low potential” for adverse ground water impacts, but contained no specific mitigation measures to prevent water quality impacts. The Ninth Circuit found that BLM complied with NEPA because the FEIS included adequate mitigation measures elsewhere in the document. The FEIS committed the mine operator to ongoing monitoring, and BLM pledged in comments to the DEIS to evaluate mitigation measures related to the lake on an ongoing basis. The Ninth Circuit cautioned that a “wait and see” attitude toward mitigation may not comply with NEPA in every instance, but concluded that such an approach was acceptable where, as here, the probability of adverse groundwater impacts was remote.

GBRW’s second mitigation claim alleged that the FEIS failed to address funding via reclamation bonds for long-term reclamation efforts after the Project’s lifespan. BLM responded that, while BLM required project operators to submit reclamation plans and cost estimates, as well as financial guarantees in the form of reclamation bonds to cover those estimates, reclamation financing need not be part of the FEIS because they are BLM regulatory requirements, not NEPA requirements. The Ninth Circuit disagreed with BLM’s reasoning, and assumed without deciding that long-term mitigation and reclamation funding must be discussed in sufficient detail in an FEIS. Turning to the FEIS at issue, the court found a sufficiently thorough discussion of long-term mitigation and reclamation measures. While the Ninth Circuit expressed some concern that the treatment of reclamation funding appeared sparse, the court found that the FEIS nonetheless addressed the effectiveness of long-term mitigation and reclamation in sufficient detail.

The Ninth Circuit briefly addressed, but declined to resolve, GBRW’s third mitigation claim. GBRW alleged that mitigation measures in the FEIS inadequately addressed impacts on surface and ground water quantity caused by pumping activities at the proposed mine. The Ninth Circuit noted that the FEIS seemed potentially incomplete with respect to water quantity impact mitigation, but suggested that the error might be harmless. Because neither party had briefed the harmlessness issue, however, and because the court was already remanding the FEIS to BLM on other grounds, the court declined to resolve this particular claim.

Fourth, and finally, the Ninth Circuit declined to rule on GBRW’s claim that approving the Project would violate BLM’s duty to protect public lands under executive order PWR 107. The court determined BLM should have the opportunity to correct the errors in its NEPA analysis, detailed above, before the court would resolve challenges to the project itself. In addition, the court was unable to determine BLM’s position on whether the Project area was covered by PWR 107. The court remanded so that BLM could clarify its position and act accordingly under the terms of PWR 107.

In sum, the Ninth Circuit affirmed in part, reversed in part, and remanded the district court’s grant of summary judgment to BLM. The Ninth Circuit found certain of BLM’s air pollution baselines justifiable, but rejected other baseline decisions for lack of reasoning. The court additionally found BLM’s cumulative impact analysis deficient, but found BLM’s mitigation decisions adequate. Finally, the court declined to rule on claims stemming from PWR 107, an executive order related to management of certain federal lands.

 

 

 

Footnotes    (↵ returns to text)

  1. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  2. Federal Land Policy and Management Act of 1976, 43 U.S.C §§ 1701–1787 (2012). The court did not address this claim.
  3. Great Basin Res. Watch v. U.S. Dep’t of Interior, No. 3:13-CV-00078-RCJ-VPC, 2014 WL 3696661, at *18 (D. Nev. July 23, 2014).
  4. APA, 5 U.S.C. § 706(2)(A) (2012).
  5. See California v. Block, 690 F.2d 753, 761 (9th Cir. 1982).
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