Judge Brian Morris Stymies New Trump Coal Sales on Federal Lands

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

US federal district judge Brian Morris dealt a serious setback to the Trump administration’s decision to increase coal mining on federal lands – stymieing issuance of new leases until the Department of the Interior undertakes further necessary environmental review required under the National Environmental Policy Act of 1970.

Morris deferred for the time being a further ruling on whether to reinstate completely the 2016 moratorium on new activity – overturned by Trump in March 2017.

More than 40% of the coal mined in the United States comes from federal lands. And as Energy World reports, the Department of the Interior’s:

Bureau of Land Management administers about 300 coal leases in 10 states. Most of that coal – 85 percent – comes from the Powder River Basin in Wyoming and Montana. Other states with significant federal coal reserves include Colorado and New Mexico.

Production and combustion of coal from federal lands accounted for about 11 percent of U.S. greenhouse gas emissions in 2014.

Federal Land Coal Mining Moratorium

In January 2016, as the New York Times reported in an article headlined In Climate Move, Obama Halts New Coal Mining Leases on Public Lands:

The Obama administration announced on Friday a halt to new coal mining leases on public lands as it considers an overhaul of the program that could lead to increased costs for energy companies and a slowdown in extraction.

The move represents a significant setback for the coal industry, effectively freezing new coal production on federal lands and sending a signal to energy markets that could turn investors away from an already reeling industry.

Judge’s Morris’s Ruling

As Energy World reports:

[Judge Morris] said Interior Department officials had wrongly avoided an environmental review of their action by describing it “as a mere policy shift.” In so doing, officials ignored the environmental effects of selling huge volumes of coal from public lands, the judge said.

“The moratorium provided protections on public lands for more than 14 months,” Morris said in Friday’s 34-page order. He added that lifting the moratorium was a “major federal action” sufficient to trigger requirements for a detailed analysis of its environmental impacts.

As the New York Times reports last Friday in Judge Delivers Major Setback to Trump Policy to Increase Coal Mining on Federal Land:

The decision means that “the Interior Department has to go back to the drawing board if they want to continue to sell coal mining leases on public lands — they have to do a better job of legally and scientifically justifying this,” said Jenny Harbine, an attorney for Earthjustice, who took part in the oral arguments against the Trump administration.

Morris ordered government attorneys to undertake further negotiations with environmental groups, states – including the attorneys general of California, New Mexico, New York and Washington, who had sued over the decision to resume federal coal leasing – and tribal officials, according to Energy World.

What’s at stake here? Over to the NYT again:

The judge also told the plaintiffs and defendants that in the coming months he will put forth a second legal decision on whether the Obama-era mining ban should be reinstated.

Judge Morris has sat on the federal bench in Montana since December 2013; he has a gold-plated legal resume, including a Stanford law degree, and served as clerk to former Supreme Court chief Justice William Rehnquist.

Trump Administration Action

In addition to Judge Morris’s latest coal ruling, according to last Friday’s NYT article, 40-odd Trump administration environmental actions have been rolled back, delayed, or suspended, following judicial review. Of course, some of these rulings will themselves be subject to further judicial review, so their final disposition is far from settled.

Two significant recent actions are:

On [19 April], the United States Court of Appeals for the Ninth Circuit gave the Environmental Protection Agency 90 days to decide whether it will ban chlorpyrifos, a pesticide linked to brain damage. While the Obama administration had recommended banning the chemical, based on the recommendations of E.P.A. scientists, the Trump administration has sought to allow the agriculture industry to continue to use the chemical.

And last month a federal judge in Alaska ruled unlawful an executive order by Mr. Trump that lifted an Obama-era ban on oil and gas drilling in the Arctic Ocean and parts of the North Atlantic coast.

[Jerri-Lynn here: For more background on chlorpyrifos, see this August 2018 post.]

Judge Morris issued an order in November 2018 halting the proposed Keystone XL pipeline until further environmental analysis could be completed, according to the Great Falls Tribune.

Another of the 40 blocked Trump polices recognized by Common Dreams  is last month’s decision by US federal district court judge Rudolph Contreras in Wyoming to stop the sale of fracking leases on public lands.

New Interior Secretary 

Does this means that the Trump fossil fuels agenda will be thwarted? For starters, will the administration abandon efforts to overturn the 2016 moratorium? Well, not so fast. Despite numerous judicial setbacks, the administration will certainly continue its attempts  to promote fossil fuel interests, as I discussed previously here.

Recall that former Interior Secretary Ryan Zinke resigned last December in the wake of several ethics complaints. As the Grey Lady notes in last Friday’s article, his replacement by seasoned litigator David Bernhardt means that in future that the Trump Interior Department will almost certainly up its legal and policy game:

Fossil fuel advocates, however, have taken heart in the recent confirmation of Secretary of Interior David Bernhardt, an expert in natural resources law who previously worked as an oil lobbyist.

Mr. Bernhardt’s predecessor, Mr. Zinke, a former congressman and member of the Navy SEALs, was viewed as inexperienced with policy and legal matters. Mr. Bernhardt is known as a deeply experienced legal and policy expert, who as a lawyer argued major environmental and energy cases before federal courts.

“Bernhardt is a whole different thing,” said Patrick Parenteau, a professor of environmental law at Vermont Law School. “They’ve been in such a hurry to carry out orders and they’ve been cutting corners — they’ll probably clean that up.”

Success at Confirming Federal Judges

In addition, the Trump administration’s success at confirming federal judges, particularly at the appellate and Supreme Court level, means in the longer-term, more Trump administration fossil fuel policies may be upheld.

I am well aware that merely thwarting rollback of Trump’s policies falls far short of the necessary actions to be taken to confront climate change – and I should also emphasize that the actions of his predecessors were also far from equal to this challenge.

But nor do I want to downplay the significance of last Friday’s ruling.

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13 comments

  1. Susan the other`

    Thanks for this info. It is encouraging. Even tho’ Trump is appointing ultra conservative judges – there will be a percentage of them who are conscientious about climate change and pollution. I find it too odd for a self-serving character like Trump to disregard sea level rise when he has hotels and golf courses and high-rise luxury condos all over the place. One of the things I keep wondering is, What is this guy’s payoff going to be?

    Reply
    1. John Zelnicker

      @Susan the other`
      April 21, 2019 at 12:51 pm
      ——-

      Actually, Trump has petitioned the Scottish government to allow him to build a seawall around his golf course on the coast of Scotland. The petition, as I heard it, presented extensive research on rising sea levels due to climate change that threatened the property.

      Hypocrisy at its best!

      Reply
      1. Susan the other`

        That’s amazing – one, that he could be so convincing as a dolt when he is actually that shrewd, and two, that he and those who support his anti-climate change agenda actually think there is enough cement in this world to build sea walls around our most vulnerable places. Even if they construct them the problem is more than high water. It is that cement sinks. And tips and falls over. But before that reality happens, there will be so many millions of refugees that a sea wall anywhere will be an absurdity. A very offensive one.

        Reply
        1. KLG

          Actually Doonbeg, Ireland, a course he bought some time after it was built:
          https://www.snopes.com/fact-check/trump-climate-change-golf-course/

          The Trump golf course at Balmedie, north of Aberdeen, was built over the objections of locals on what amounts to a World Heritage site of drifting sand dunes. So far he has not followed through on much of anything attached to the “resort” in Scotland. You know, a hotel, hundreds of housing units, a thousand good jobs…I know everyone here is shocked by that.

          Reply
        2. jefemt

          The embodied energy in cement/ concrete is staggering. Energy, in its present iteration, is primarily carbon/fossil fuel derived.

          Walls, at the sea or border, are band-aids.

          Nice to see a Montanan that is NOT of the Zinke/Gianforte/Rosendale sect!

          Reply
      2. drumlin woodchuckles

        The Scottish government could deny Trump permission to build a seawall around his golf course on the coast of Scotland. The Scottish government could cite Trump’s own publicly stated belief that “global warming” is a Chinese hoax and pretend to believe that Trump really believes it. The Scottish government could cite Trump’s publicly state climate-decay denialism to say that Trump does not really believe sea levels will rise and therefor has no reason to ask for a seawall.

        Seawall denied!

        But does the Scottish government care any more about global de-warming than President Trump does? If it does, it will deny Trump his seawall. If it allows Trump his seawall, that is proof positive that the Scottish government takes global warming as frivolously as Trump does.

        And the same goes for all other governments which will, of course, without exception, all grant Trump’s requests for seawalls for all of Trump’s seaside resorts.

        Hey! I just made a prediction! Let’s see if the next 5-20 years prove me right or wrong.

        Reply
  2. Roland

    I don’t like the president’s coal policy, but I hate the idea of a judge making policy even more. This ruling is bogus.

    It was an executive decision to halt new coal leases, and it should be an executive decision to resume.

    As a leftist, I think other leftists should be alarmed at this sort of excessive judicial behaviour. If the left ever wins elections, you do realize those well-entrenched establishment s.o.b.’s will try to do the same crap to us?

    Then what? Purges? As a social democrat, that’s not the sort of thing I want. But there are reasons why those sorts of things tend to happen in history, and guys like Morris are an example of what eventually gets people purged. Keep it up, boys!

    Reply
    1. Tom in AZ

      Well, purportedly ‘social democrat’, enlighten us on what you believe besides letting the president just skip the environmental impact part of his job?

      Reply
    2. Oh

      You’re using the Republican line regarding “judges making policy”. Just thought you should know. NEPA was passed for a reason. It’s time the Administration played by the existing rules.

      Reply
    3. Synapsid

      Roland,

      Government policies must comply with existing law. It’s the judge’s job to decide whether or not they do.

      Reply
    4. Ba

      My understanding is that we have three branches of government. Admittedly, the concept of “checks and balances” has been largely ignored of late, but this seems to be in accord with both that general principle, and in specific with federal regulatory procedural guidelines. Or do your “leftist” views support totalitarian rule?

      Reply
    5. ChiGal in Carolina

      Disagree. Thank heavens the judiciary has been doing its job, unlike Congress and the so-called Fourth Estate. We would be much deeper in the soup right now if it wasn’t for them.

      And thanks Jerri-Lynn for another post full of insight and context. NC is lucky to have its very own lawyer on the case!

      Reply
  3. Wombat

    Thank you for posting this rollup. After the sadness I felt watching the link Lambert posted:

    https://mobile.twitter.com/means_tv/status/1119188490917433344

    And the helplessness I felt watching this:

    https://youtube.com/watch?v=p5RcbPZXUZo

    … your work was a source of hope. Swaths of Appalachia have already been destroyed, but perhaps we can still save our public Western lands.

    No extractor company board member ever said: “We have destroyed enough … topped enough mountains, fouled enough streams … let’s stop.”

    The judicial branch providing a road block is a good sign.

    Reply

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