2011-11-14_REVISION - C1981022 - Laserfiche WebLink

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Appeal Deciding Officer 7 • Disclosure of the impacts of air and pollutants emitted The Appellant states , “[i]t does not appear that any previously -prepared NEPA document has disclosed the impacts of air and pollutants emitted from the Elk Creek Mine’s ventilation system and methane drainage wells .” The EA, under Other Related Efforts (Tab 2; page 24) references previous N EPA analysis incorporated into the document, specifically identifying application for lease modifications as foreseeable actions. The Appellant states that methane and greenhouse gas (GHG) emitted from the half -million tons of coal outside the lease modif ication was not included in the analysis of the EA. Under the parent lease, any air quality analysis pertaining to methane and GHG is covered under Section 3.1 and Appendix M of the North Fork Coal EIS (Tab 4). Recommendation: The environmental analys is adequately addresses the impacts of the proposed action from mining a half -million tons of coal outside the lease modification area. The Decision Notice met the requirements of 40 CFR § 1508.7, 40 CFR § 1508.8, and 40 CFR § 1508.27. The record support s the deciding officer ’s decision . Therefore, I recommend that the Forest Supervisor’s decision be affirmed on this point. Appeal Issue II : THE FOREST SERVICE VIOLATED NEPA BY FAILING TO ANALYZE REASONABLE ALTERNATIVES TO REDUCE THE METHANE POLLUTION OF THE COAL LEASE. When the Forest Service issues an EA, it must take a “hard look” at the project’s environmental impacts and the information relevant to its decision. Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 711 –12 (10th Cir. 2010). I n taking the required “hard look,” an EA must “study, develop, and describe” reasonable alternatives to the proposed action . 42 U.S.C. § 4332(2)(E); Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1245 (9th Cir. 2005); 40 C.F.R. § 1508.9(b) (an EA “[s]hall include brief discussions ... of alternatives”). This alternatives analysis “is at the heart of the NEPA process, and is ‘operative even if the agency finds no significant environmental impact.’” Diné Citizens Against Ruining Our Env’t v. K lein, 747 F. Supp. 2d 1234, 1254 (D. Colo. 2010) (quoting Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1277 (10th Cir. 2004)), appeal dismissed, No. 11 -1004, 2011 WL 3793969 (10th Cir. Aug. 26, 2011); see also 40 C.F.R. § 1502.14. Accordingly, “[i]nformed and meaningful consideration of alternatives” is “an integral part of [NEPA’s] statutory scheme.” Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228 (9th Cir. 1988). The Forest Service’s failure to analyze reasonable alternatives to limit GHGs wh ile consenting to the Lease Modification ignores all of this guidance and results in an inadequate consideration of a substantial environmental question of material significance to the proposed action, violating NEPA.