Environmental and Natural Resources Law Clinic
Protecting Montana Citizens and Ranchers from Harmful Effects of New Coal Mining Activities
On behalf of the Northern Plains Resource Council and National Wildlife Federation, the Clinic filed a lawsuit in 2011 against the State of Montana and Arch Coal, Inc. challenging issuance of coal leases in the Otter Creek Basin of Southeast Montana. The case argues that the Montana Land Board violated the State's constitutional provisions granting every citizen the right to a "clean and healthful environment" by issuing the leases without conducting an environmental assessment under the Montana Environmental Policy Act, a law modeled on the federal National Environmental Policy Act. NPRC argues that the state must consider the harmful effects of mining and burning coal, including climate change, before granting the right to mine up to 1.4 billion tons of coal. After denying a motion to dismiss, the District Court granted summary judgment in favor of the state and against our clients in February 2012. The case is now on appeal to the Montana Supreme Court. Briefs have been submitted, oral argument has been requested and we await further word from the Court.
In a second case, the Clinic is representing NPRC and rancher Mark Fix in a proceeding before federal Surface Transportation Board involving the proposed Tongue River Railroad (TRR) that is needed to access the Otter Creek mine and other proposed coal mines in the Powder River Basin. In April 2012 the Ninth Circuit ruled, in a case brought by NPRC and argued by Professor Jack Tuholske, that an EIS prepared by STB on the TRR was inadequate in part because to failed to consider the impacts of the Otter Creek mine. The Court set aside STB's approval of the TRR and remanded the case to the STB. On behalf of NPRC and Mark Fix, the Clinic filed a petition to reopen the proceeding and prepare a new EIS that considers all of the impacts of the railroad and the mine including climate change effects. In August 2012 the STB agreed to reopen the proceeding and conduct an entirely new environmental analysis which could take up to two years. This is a significant victory for our client and we will be actively participating in the STB proceeding which is conducted as a formal adjudicatory hearing with discovery, pre-filed testimony and cross examination of witnesses.