Laserfiche WebLink
CONSERVATION GROUPS’ COMMENTS <br />UNCOMPAHGRE FIELD OFFICE RMP AND DEIS <br />29 <br />§§ 1502.14(f), 1502.16(h); Robertson, 490 U.S. at 351-52; Holy Cross Wilderness Fund v. <br />Madigan, 960 F.2d 1515, 1522 (10th Cir. 1992). <br /> <br />CEQ has stated: “All relevant, reasonable mitigation measures that could improve the <br />project are to be identified, even if they are outside the jurisdiction of the lead agency or the <br />cooperation agencies.”84 Further, an agency’s analysis of mitigation measures “must be <br />‘reasonably complete’ in order to ‘properly evaluate the severity of the adverse effects’ of a <br />proposed project prior to making a final decision.” Colo. Envt’l Coalition v. Dombeck, 185 F.3d <br />1162, 1173 (10th Cir. 1999) (quoting Robertson, 490 U.S. at 352). Mitigation measures “must be <br />discussed in sufficient detail to ensure that environmental consequences have been fairly <br />evaluated.” City of Carmel-by-the-Sea, v. United States Dept. of Transp., 123 F.3d 1142, 1154 <br />(9th Cir. 1997) (quoting Robertson, 490 U.S. at 353). <br /> <br />Moreover, both the CEQ’s 2014 Draft and 2016 Final NEPA climate guidance instructs <br />agencies to “consider the potential for mitigation measures to reduce or mitigate GHG emissions <br />and climate change effects when those measures are reasonable and consistent with achieving the <br />purpose and need for the proposed action.”85 The guidance specifies that mitigation measures <br />could include, among other things, “capturing or beneficially using GHG emissions such as <br />methane.”86 <br /> <br />Finally, although neither mitigation measures nor alternatives must be within an agency’s <br />jurisdiction in order to be incorporated in the agency’s NEPA review (40 C.F.R. §1502.14(c)), <br />here it is worth noting that BLM has explicitly stated that it has authority to require coal mines <br />operating on public lands to capture methane in order to mitigate climate impacts. <br /> <br />In 2014, BLM issued an advance notice for proposed rulemaking (“ANPR”) requesting <br />“comments and suggestions that might assist the agency in the establishment of a program to <br />capture, use, or destroy waste mine methane that is released into the mine environment and the <br />atmosphere as a direct consequence of underground mining operations on Federal leases for coal <br />and other minerals.” 79 Fed. Reg. 23,923 (Apr. 29, 2014). The waste mine methane ANPR noted <br />that the agency had the authority to require methane capture in coal leases: <br /> <br />Based on the readjustment authority [30 U.S.C. § 207], the BLM may readjust <br />lease terms to both authorize and require lessees to capture otherwise vented <br />[waste mine methane] to use or sell. The BLM also has authority under the same <br />section of the MLA to include such terms and conditions in new coal leases. <br /> <br />79 Fed. Reg. at 23,924; see also, id. at 23,923 (citing 30 U.S.C. § 189, which states: the <br />Secretary “is authorized to prescribe necessary and proper rules and regulations and to do any <br />and all things necessary to carry out and accomplish the purposes of” the MLA governing coal <br />leasing; and 30 U.S.C. § 207, which states: coal leases “shall include such other terms and <br /> <br />84 Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act <br />Regulations, 46 Fed. Reg. 18,026, 18,031 (March 23, 1981). 85 Final Climate Guidance at 19 (attached as Exhibit 4). 86 Id.