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Coal Mines and Government Lose Climate-Injury Appeal

By George Khoury, Esq. | Last updated on

A recent appeal handed down by the Tenth Circuit Court of Appeals might change the way things get done in the mining and energy industry.

The appellate decision is requiring the federal agency that conducts analyses on environmental impacts for mining operations to redo their analysis for a group of mines subject to a challenge brought by the Wildearth Guardians and the Sierra Club. However, the subpar analysis was already relied upon, and as such, the court refused to vacate the agreements entered into allowing two mines to expand.

Bad Reporting

The Bureau of Land Management was alleged to have conducted a faulty economic and environmental impact report. Basically, rather than provide an analysis on how not operating these mines would have impacted the environment, the BLM's reports claimed that if these mines were not providing the demanded coal, it would be supplied elsewhere, and thus have the same impact.

The court explained that this logic was flawed. It further explained that it appeared clear that if the mines were not in production, the cost of coal would likely rise, thereby potentially, and more than likely, decreasing the demand for coal. The court recognized that the demand for energy producing resources closely tracks the cost.

The Court Knows Climate Change

Taking a look at the opinion, it is rather clear that the court has spent time grappling with climate science. But this opinion quickly synthesizes some critical uncontested facts.

No one in this litigation contests: the quantity of coal proposed in these leases would result in approximately 382 million tons of annual carbon dioxide emissions from electricity generation, which is the equivalent of roughly 6% of the United States's total emissions in 2008, anthropogenic carbon dioxide emissions contribute to climate change, climate change presents a litany of environmental harms disbursed throughout the globe, and if the nation's energy mix shifts towards non-coal energy sources, less carbon dioxide would be emitted.

And if you were leaning toward giving this opinion a full read, at one point, the court, quoting another court, comments that BLM may have been "slicing the salami too thin." 

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