UPDATE: On September 11, 2017, the Interior Department’s Office of Hearings and Appeals rejected the Bureau of Land Management’s petition asking for illegally approved coal decisions to be upheld. This is great news and means that we can move forward on confronting past illegal coal leasing and continue to make strides toward keeping our coal in the ground.
Back in February, WildEarth Guardians quietly scored a major ruling that Trump’s U.S. Bureau of Land Management illegally allowed employees without authority to approve sales of publicly owned coal. Now that ruling is under assault and Guardians is pushing back to defend it.
The ruling, which was issued by an Interior Department Appeals Board, completely reversed a plan to sell more than 15 million tons of coal to Cloud Peak Energy to expand the company’s Antelope strip mine in the Powder River Basin of Wyoming.
The Antelope mine is big. It’s the third largest in the U.S., producing more than 35 million tons of coal annually. And 15 million tons of coal is a lot of coal. It’s more than was produced from all coal mines in Colorado in 2016.
But aside from the impact of keeping 15 million tons of coal in the ground, the ruling is even more significant given the precedent it established.
In wonky terms, it held that Bureau of Land Management District Managers were not authorized to approve coal sales. District Managers are like middle management. At the top of the Bureau, there’s a Director, and below the Director are State Directors. Below the State Directors are District Managers (and below the District Managers are officials called Field Managers, the lowest in the chain of command).
Under Bureau of Land Management policies, only State Directors are allowed to approve coal sales. Nevertheless, over the last several years, the agency has allowed District Managers (and in some cases Field Managers) to approve coal sales, completely at odds with its delegation of authorities.
In WildEarth Guardians’ case, a District Manager approved the Antelope mine coal sale, prompting the the Interior Board of Land Appeals to hold:
Based on BLM’s delegations of authority, we find that the District Manager was not authorized to approve the coal lease modification in the DR [Decision Record]. The purported decision therefore has no legal effect, and the Board properly sets it aside[.]
Far from a technicality, the issue of decisions being made by Bureau of Land Management officials who have no authority is a big deal. Effectively, the agency is allowing rogue officials to make decisions they have no business making.
For our federal government to let this happen is reprehensible.
And yet the Bureau of Land Management has been letting it happen all the time. By our count, in the last six years, the agency has allowed District Managers to approve seven new coal sales in the Powder River Basin of Wyoming. These sales collectively comprise more than two billion tons of coal, which is more than twice the total amount of coal mined in the U.S. every year.
That’s not the end of it. WildEarth Guardians’ February ruling came on the heels of three prior rulings that overturned Bureau of Land Management coal sale decisions that were made by Field Managers, who also have no authority to make these decisions.
And in August of 2016, we overturned two coal sales on the same day, one that would have expanded Peabody’s Twentymile coal mine in Colorado and one that would have expanded Pacificorp’s Jim Bridger mine in Wyoming (both these mines fuel nearby power plants).
By our count, at least in the American West, two dozen coal sales have been illegally approved since 2006. These improper decisions have opened the door for the sale of 2.2 billion tons of publicly owned coal to companies like Peabody and Arch. When burned, this coal stands to unleash more than 3.8 billion metric tons of carbon pollution.
From a legal standpoint, all of these coal sales are completely invalid. The decisions were made by rogue officials with no authority. Nevertheless, emboldened by President Trump, the Bureau of Land Management is actually trying to defend itself.
In April, the agency petitioned the Director of the Interior Department’s Office of Hearings and Appeals to reverse the Interior Board of Land Appeals. These kinds of petitions are very uncommon (and the Office of Hearings and Appeals is pretty obscure to begin with), but the Bureau of Land Management made very clear that its petition was all about defending rogue agency decisions to benefit the coal industry.
After all, the agency explicitly stated in its petition that it wanted to “eliminate” a cloud over other coal sales that had been illegally approved.
While the Bureau of Land Management’s attack on Guardians’ victory was clearly politically motivated to defend coal companies, the crazy thing is, it actually stands to hurt the agency more than it helps.
In an opposition filing yesterday, WildEarth Guardians fired back at Trump’s Bureau of Land Management, pointing out that if the agency is actually correct, it would call into question the validity of dozens, if not hundreds, of coal sales.
The reason is that, according to the Bureau of Land Management, while unauthorized officials signed decisions, these documents didn’t actually “approve” any coal sales.
If that sounds bizarre, it’s because it is. The agency essentially argued that even though decisions were made, no decisions were actually made. It would be like a high school senior being handed a diploma, but being told they didn’t actually graduate yet.
It’s complete smoke and mirrors, but for the Bureau of Land Management, it really stands to blow up in their face. And, quite frankly, that would be awesome.
That’s because if the Bureau of Land Management is correct that no coal sales have been approved even though decisions have been signed, it means that every coal sale supposedly “approved” for at least the last four decades, if not longer, has been completely 100% illegal.
If no “approval” for any coal sale has ever been issued, then no coal sales have technically been authorized. Period.
Regardless, it’s clear the management of publicly owned coal is completely dysfunctional. Whether it’s allowing rogue officials to approve coal sales without any authority or trying to argue that decisions to approve coal sales haven’t actually “approved” coal sales, the Bureau of Land Management clearly has no clue what it’s doing.
Which is why it’s absolutely disgusting that Secretary of the Interior, Ryan Zinke, completely derailed efforts to reform the way our publicly owned coal is managed. In doing so, Zinke all but condoned the Bureau of Land Management’s practice of illegally selling off our coal.
In any case, Trump, Zinke, and the Bureau of Land Management are going to get a dose of reality soon enough. While they may be entitled to love the coal industry, they’re not allowed to break the law to show that love.
One way or another, we’re still on track to win and defend our climate, clean energy, and American West.