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Energy and Environment Monitor

Tenth Circuit Vacates District Court NEPA Rulings on Mine Permit Modifications, but Only After Finding Appeals Were Moot

June 23, 2016

By: Robert G. McLusky

In 2015, a district court in Colorado ruled that OSM had failed to discharge its NEPA obligations in considering applications to modify existing surface mining permits sought by Colowyo Coal Company and Trapper Mining, Inc.  The two mines at issue were the primary fuel suppliers for a power plant.  The court ruled that OSM had improperly failed to solicit public comment on its Environmental Assessment performed under NEPA and failed to extend its NEPA review to the indirect effect of coal combustion on air and water quality.  Both companies appealed the decision to the Tenth Circuit, but OSM declined to appeal and instead elected to conduct the expanded NEPA analysis. 

While the appeal was pending, OSM completed its revised NEPA analysis and reapproved both permits. WildEarth Guardians, the original plaintiff, then argued that the appeals were moot and that the Tenth Circuit lacked jurisdiction to hear them. The Tenth Circuit agreed, finding that the appeals could not qualify for the exception to the mootness rule for cases that are “capable of repetition, yet evading review.”  The Tenth Circuit did, though, also vacate the district court opinion, thereby clearing a path for future re-litigation of the issues between the parties. 

This article was authored by Robert G. McLusky, Jackson Kelly, PLLC.


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