Earlier this week, the Judge Donald Malloy of the District Court for the District of Montana granted summary judgment to the Montana Environmental Information Center on several of its claims alleging that the Office of Surface Mining had violated NEPA in approving a modification of a mining plan to expand the Bull Mountains Mine No. 1. The decision is important for two reasons.
First, Judge Malloy agreed with the plaintiffs that it was arbitrary and capricious for OSM to fail to consider the costs associated with expansion of the mine. As Judge Malloy acknowledged, NEPA does not always require a cost benefit analysis. However, here, OSM calculated the economic benefit of the mine without attempting to determine the costs. (Do I hear an echo of the case challenging President Trump's "2 for 1" Executive Order, that requires zeroing out the cost of regulations, with no consideration of their benefits?)
Interestingly, the Court also specifically mentioned the Social Cost of Carbon Protocol, developed under the Obama administration, as one tool to use to quantify the costs associated with the mine expansion. We'll see how that fares under this administration.
The second point is a broader one about NEPA, and is a useful reminder, even if not original. The defendants repeatedly argued, on the social cost of carbon issue, as well as others raised in the case, that they had no obligation to address the issues raised by the plaintiffs, because it would have been speculative to do so. The Court disagreed, noting repeatedly that uncertainty and a lack of precision are not the same as "speculation." In fact, as the Court noted, the presence of uncertainty about impacts makes it even more important to conduct a full environmental impact assessment.
It is probably true that one person's speculation is another's reasonable foreseeability. Either way, it's a good reminder that this is an issue that both citizen groups and project proponents need to address and properly frame.
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