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High Country Conservation Advocates v. United States Forest Service

ELR Citation: 44 ELR 20144
Nos. 13-cv-01723, (D. Colo., 06/27/2014) (Jackson, J.)

A district court vacated the government's approval of on-the-ground mining exploration activities in a part of western Colorado's North Fork Valley and enjoined the intervening mining companies from proceeding with the project until the agencies comply with NEPA. Although the federal agencies provided an adequate disclosure of the project's effects on adjacent lands, their treatment of the costs associated with greenhouse gas (GHG) emissions from the mine was arbitrary and capricious. One of the foreseeable effects of the project is the likely release of methane gas from the expanded mining operations. But beyond quantifying the amount of emissions relative to state and national emissions and giving general discussion to the impacts of global climate change, the federal agencies did not discuss the impacts caused by these emissions in the EIS. Instead, they offered a categorical explanation that such an analysis was impossible. But a tool for quantifying such costs does exist—the "social cost of carbon protocol"—and the agencies used this protocol in the draft EIS. Yet, the final EIS retained the quantification of the benefits associated with the project but omitted the costs of GHG emissions. While the agencies might have justifiable reasons for not using the social cost of carbon protocol to quantify the cost of GHG emissions from the project, they failed to provide those reasons in the final EIS, and their post-hoc attempts to justify their actions are unpersuasive. The EIS's proffered explanation for omitting the protocol was therefore arbitrary and capricious in violation of NEPA, and the court immediately enjoined any construction, bulldozing, or other on-the-ground, above-ground or below-ground disturbing activity in the project area.