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2015-12-16_GENERAL DOCUMENTS - C1981035 (4)
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2015-12-16_GENERAL DOCUMENTS - C1981035 (4)
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Last modified
8/24/2016 6:13:28 PM
Creation date
12/18/2015 10:57:36 AM
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DRMS Permit Index
Permit No
C1981035
IBM Index Class Name
General Documents
Doc Date
12/16/2015
Doc Name
Coal Transport NEPA Process
From
Luke Danielson
To
DRMS
Permit Index Doc Type
General Correspondence
Email Name
RAR
DIH
Media Type
D
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No
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if off-highway trucks are used over a private single -use road, the total number of <br />trips would be reduced as compared with aver -the -road trucks. off highway <br />trucks individual capacity is from50 to 250 tons depending on type of units <br />available. Typical capacity would be about 100 tons." Report at 5. <br />THE LAW REQUIRES CONSIDERATION OF ALTERNATIVES <br />Mr. Strid's concern regarding the 8LM's consideration of viable alternatives is not just good <br />policy in his field of expertise, it is an ironclad requirement of the NEPA process. <br />"The obligation to consider alternatives to the proposed action is at the heart of the <br />NEPA process, and is 'operative even if the agencyfin ds no significant environmental <br />impact.' In formulating an EA, an agency must `study, develop, and describe appropriate <br />alternatives to recommended courses of action in any proposal which involves <br />unresolved conflicts concerning alternative uses of available resources.'42 U.S.C. § <br />4332 (2)(E); 40 C.E.R. § 1508.9(b)." Dine Citizens Against Ruining aur Env't v. Klein, 747 F. <br />Supp. 2d 1234, 1254-55 (D. Colo. 2010) (internal citations omitted). <br />The Dine Citizens case quoted above is especially applicable to the GCC permitting process. In <br />that case the court struck down a coal lease in Colorado because, among other reasons, the EA <br />failed adequately to consider alternatives. "The existence of a viable but unexamined <br />alternative renders an alternatives analysis, and the EA which relies upon it, inadequate." Id. at <br />1255. <br />Other courts have similarly championed the necessity of careful consideration of viable <br />alternatives. In another lot" Circuit case, a NEPA permitting agency was again rebuked for <br />failure adequately to consider alternatives. This case is particularly analogous because the <br />alternatives considered, or lack thereof, involved the possibility of increased traffic because of <br />the proposed project. <br />"...only two alternatives were studied in detail: the no build alternative, and the <br />preferred alternative. [The permitting agency] acted arbitrarily and capriciously it] <br />approving an [EA] that does not provide on adequate discussion of Project alternatives." <br />Davis v. 1Viineta, 302 F.3d 1104, 1.122 (10th Cir. 2002) <br />The cases quoted above are sirriply an example of an extensive case law reemphasizing the <br />importance of considering alternatives. Mr. Strid's report makes it clear that "alternatives" <br />currently proposed for consideration are inadequate and would almost certainly run afoul of <br />the requirements of Dine Citizens, Davis, and a host of other loth Circuit cases. <br />
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