The Montana Environmental Information Center ("MEIC") and Sierra Club, represented by Earthjustice, are taking legal action to challenge a massive new coal strip mine in southeastern Montana. The lawsuit filed in state court alleges that the state's decision to lease 572 million tons of coal for mining without first examining the potentially devastating environmental consequences of the mine, violated the state's constitutional and fiduciary obligation to prevent unreasonable environmental degradation.
Montana's Board of Land Commissioners—which includes the Governor and Montana's four other top elected officials—voted on March 18, 2010 to lease the state's Otter Creek coal reserves to Arch Coal. Arch Coal is the nation's second largest coal producer. In addition to its mines in the Powder River Basin, Arch Coal operates several coal mines in central Appalachia that employ the controversial mining technique known as mountaintop removal.
Including the adjacent private coal tracts, also leased by Arch Coal, the proposed Otter Creek mine will exploit a 1.3 billion ton coal reserve, making it one of the largest coal mines in North America. Arch Coal has suggested that it may export Otter Creek coal to feed a growing demand in Asian countries.
Almost all of the Otter Creek coal is destined for coal-fired power plants, where it will emit 2.4 billion tons of carbon dioxide. Carbon dioxide is one of the greenhouse gases that is primarily responsible for global warming.
In an op-ed that ran in Montana newspapers in February, Nobel laureate and University of Montana professor Dr. Steve Running stated, "From a state carbon emissions point of view, [leasing the Otter Creek coal tracts] is the single most important decision in the history of Montana. … Indeed, the ability of the global community to avert the worst-case climate change scenarios comes down to decisions like this one at the local level in each country."
The lawsuit filed by the conservation groups echoes that sentiment. MEIC representative Anne Hedges said, "A decision with such profound environmental consequences may only be made after the state has evaluated all of its environmental impacts and explored every reasonable alternative. The Land Board's failure to educate itself about the environmental impacts of leasing Otter Creek violated the Board's duty to protect Montana's resources for future generations."
Sierra Club representative Mike Scott stated, "There is a reason that the law requires decisionmakers to 'look before they lease.' Our elected officials are not permitted to blindly lead their constituents down the global warming rabbit hole."
Although Arch Coal must apply for permits before it can develop the Otter Creek coal mine, now that it has issued the lease, the state no longer has the ability to condition the leasing of the coal on measures to avoid the most significant environmental impacts. Among other things, the lawsuit argues that the Land Board should have considered imposing lease conditions that would require that the coal be sold only to facilities that commit to capturing and storing their carbon dioxide or prohibit the export of Otter Creek coal to other countries with lax environmental laws.
"The law requires environmental review to be performed at a stage when options are still available to avoid significant environmental harm. In the face of global warming, the most profound environmental threat in human history, the state should think twice before making decisions that will impact the entire planet," said Jenny Harbine, an attorney with Earthjustice who is representing the groups.