September 9, 2024
Via Online Submission
Tracy Stone-Manning, BLM Director
Attention: Protest Coordinator (HQ210)
Denver Federal Center, Building 40 (Door W-4)
Lakewood, CO 80215
Re: Lignite Energy Council Protest on the North Dakota Proposed Resource Management Plan and Final Environmental Impact Statement
Dear Director Stone-Manning,
The Bureau of Land Management (“BLM”) has published the North Dakota Proposed Resource Management Plan and Final Environmental Impact Statement (collectively “Proposed RMP/EIS”) dated July 2024. The Lignite Energy Council (“LEC”), on behalf its members, respectfully protests various issues in the Proposed RMP/EIS pursuant to 43 C.F.R. 1610.5-2, as discussed below.
The LEC consists of over 250 members representing lignite mines, electric utilities, independent power producers and contractor supplies in the Upper Midwest. LEC has been advocating for its members since 1974 and seeks to maintain a viable lignite coal industry and enhance development of the regions’ lignite coal resources for use in generating electricity, synthetic natural gas, and valuable byproducts.
On May 22, 2023, the LEC submitted comments (“May 2023 LEC Comments”) in response to the North Dakota Draft Resource Management Plan/Environmental Impact Statement 88 FR 3757 (Jan. 20, 2023) (“Draft RMP/EIS”). A copy of the May 2023 LEC Comments is attached hereto for ease of reference. While LEC acknowledges the BLM has attempted to address some of industry’s concerns previously identified in the Draft RMP/EIS, the LEC continues to have significant concerns with various voids, gaps, and inconsistencies that carry over in the Proposed RMP/EIS and Alternative D. The LEC is further concerned the Proposed RMP/EIS imposes additional constraints on the lignite industry by imposing new restrictions upon federal coal leasing that lack a rational basis for adoption.
LEC members will be directly impacted and harmed by the restrictions imposed on the lignite industry under the Proposed RMP/EIS. The Proposed RMP/EIS seeks to further restrict
development of North Dakota’s abundant coal resource instead of promoting its reasonable use. For the reasons discussed herein, the LEC protests the new Alternative D under the Proposed
RMP/EIS. Due to the expansive nature of the information contained within the Proposed RMP/EIS, the new Alternative that is now proposed, and the limited comment window afforded to protestors, LEC reserves the rights to raise additional challenges under the National Environmental Policy Act during litigation in addition to those raised herein.
The LEC Protests the Conflicting Nature of the Proposed RMP/EIS with Federal Statutory Directives Supporting Federal Coal Leasing.
In the May 2023 LEC Comments, the LEC expressed concerns that the Alternatives in the Draft RMP/EIS sought to restrict federal leasing and surface coal mining in conflict with Congressional directives to promote the exploration and development of coal resources. See May 2023 LEC Comments, Section I. These concerns remain. As previously voiced, mining has always been an anticipated and necessary use of public lands and interests, and it has long been the policy of the federal government to foster and encourage mineral development.
Despite the concerns previously raised by LEC, BLM continues to treat surface coal mining as an impact and not a valid and necessary resource to be managed. This is evidenced by the restrictions imposed in Alternative D. LEC protests the manner in which the Proposed RMP/EIS seeks to restrict leasing and development as it continues to be inconsistent with the Mining and Minerals Policy Act of 1970 (“MMPA”), Federal Land Policy and Management Act (“FLPMA”), the Surface Mining Control and Reclamation Act (“SMCRA”), the Administrative Procedure Act (“APA”), the National Environmental Policy Act (“NEPA”), and other various federal laws, regulations, and policies. For example, Alternative D over doubles the acres deemed unacceptable for leasing when compared to Alternative A. Under Alternative A, “the coal screening results from the 1988 North Dakota RMP would continue to be applied. It identifies 435,800 acres as unacceptable for coal leasing . . . .” Proposed RMP/EIS at 3-270. However, “Alternative D would manage approximately 1,037,800 acres as unacceptable for further consideration for coal leasing.” Id. at 3-271. This increased restriction lacks a rational basis and demonstrable benefits. There is no rational basis to justify such departure from Congress’s directive to promote mineral development; nor can there be, as Congress’s statutory directives remain the governing authority.
In response to the concerns raised by LEC regarding conflicts with federal directives to encourage mineral development, BLM defended its actions based on a Montana federal district court case, stating the following:
In developing the alternatives, the BLM aimed to balance the directives of the laws that intend BLM to make some land available for leasing, the WORC court decision (Western Organization of Resource Councils, et al. v. BLM; 4:20-cv-00076-GF-BMMM 8/3/2022) to consider climate as part of Coal Screen 3, and Administrative
Goals and Objectives to reduce GHG emissions. Even though the WORC case is in another district court, it has set precedent for BLM’s coal program. Further, there is a need for consistency in the Eastern Montana/Dakotas District Office since the authorized office for signing the ND RMP is the same as for the Miles City Field Office RMP for which the case directly applied.
Proposed RMP/EIS at Appendix M, M-40. BLM justifies restrictions on surface coal mining by relying on a federal district court case from a state other than North Dakota, that is outside of the Eighth Circuit. As such, WORC has no binding, precedential effect on the North Dakota RMP/EIS. Thus, BLM’s apparent reliance on and interpretation of WORC is misplaced. First, the holdings in WORC specifically relate to the separate Buffalo and Miles City RMPs. They do not govern nor establish precedent over the ND RMP. Second, WORC directs the BLM to follow NEPA by considering climate in the coal screening process. The Court did not force the BLM to implement a climate screen in its RMPs nor did the Court direct the BLM to avoid all effects on climate. Third, notably, the Court did not invalidate the aforementioned federal statutory directives aimed at promoting development of federal minerals. The Proposed RMP/EIS’s coal screening and land use process hinders furtherance of these Congressional directives.
LEC Protests the Proposed RMP/EIS’s Conclusions Regarding Scope of Harm to the Coal Industry’s Economic and Employment Contributions.
The LEC originally expressed concerns that the Draft RMP/EIS lacked adequate consideration of the significant economic contributions the lignite energy industry contributes to North Dakota’s economy. The Proposed RMP/EIS now acknowledges “North Dakota contains the single largest deposit of lignite known in the world. The industry contributes substantially to North Dakota’s economy, resulting in $5.75 billion in gross business volume, 12,000 jobs (direct and secondary), and $104 million in local and state government revenues (NDSU 2023).” Proposed RMP/EIS at 3-245. While LEC applauds the BLM’s recognition of the vital contributions coal brings to North Dakota’s economy, the RMP simply restates facts cited by the LEC and undertakes no analysis or assessment as to how the RMP/EIS will impact these contributions.
In fact, the RMP goes on to conclude “[s]ince most coal production in North Dakota occurs outside federal control, the impacts from the decisions in the RMP would have limited influence on the coal industry.” Proposed RMP/EIS at 3-246. The BLM acknowledges most coal production in
North Dakota occurs outside of federal control, and if the agency further believes the RMP will have “limited influence” — it begs the question as to why then are the RMP’s restrictions being proposed? The answer is simple. The Proposed RMP/EIS seeks to impose roadblocks on North Dakota coal development generally under the guise of federal resource management.
The BLM’s conclusion that the RMP will have “limited influence on the coal industry” is contrary to the extensive commentary provided by industry in response to the Draft RMP/EIS. This conclusion evidences the BLM has not adequately considered the comments the coal industry has provided that expressly detail the impacts and potential harm the RMP/EIS will impose on the economic contributions of coal, and to the industry as a whole. See Proposed RMP/EIS, Appendix M, detailing extensive commentary from the coal industry. Failure to meaningfully consider the RMP’s harm renders the conclusions of the Proposed RMP/EIS clearly arbitrary.
The LEC Protests the Proposed RMP/EIS’s Failure to Consider North Dakota’s Comprehensive Regulation over Coal Mining and the Protection of Resources.
The May 2023 LEC Comments outlined LEC’s concern that the BLM failed to consider the North Dakota Public Service Commission’s (“NDPSC”) regulatory framework for managing coal mining in North Dakota under SMCRA. The comments detailed information that an applicant must provide to the NDPSC for the agency’s review and consideration of a mining permit (information on land uses, soils, geology, vegetation, fish and wildlife, water quantity and quality, air quality, archaeological, cultural, and historic features) and the general scope of the NDPSC’s regulatory oversight over coal mining, inspections, and reclamation. See May 2023 LEC Comments at Section III. The Proposed RMP/EIS continues to improperly ignore the NDPSC’s existing role in managing coal mining, the protection of resources, and reclamation.
The criteria for development and revision of an RMP requires the BLM to “coordinate the land use inventory, planning, and management programs of other Federal departments and agencies and of the States and local governments within which the lands are located.” 43 U.S.C. § 1712. However, the Proposed RMP/EIS continues to contain no meaningful discussion or consideration of the NDPSC’s existing management and regulatory program over coal mining. In response to this concern, the BLM stated:
BLM has the authority to lease federal coal under the Mineral Leasing Act. The State then has an approved SMCRA program to regulate mining and reclamation operations. No restriction BLM puts on a coal lease prevents the state from implementing SMCRA or State regulations.
Proposed RMP/EIS at Appendix M, M-133. The issue is not that the Proposed RMP/EIS prevents the NDPSC from implementing its program under SMCRA. The issue is that because the BLM has failed to meaningfully consider the NDPSC’s regulatory framework for overseeing and managing impacts from surface coal mining, the Proposed RMP/EIS does not adequately factor existing mitigation, minimization, and avoidance of impact measures already required by the State to protect resources. The result is the Proposed RMP/EIS’s assessment of impacts is arbitrary and
it presumably grossly exaggerates the scope of potential impacts attributed to coal mining by failing to account for an entire existing regulatory regime designed to promote the management of resources and responsible development of coal.
Not only has the Proposed RMP/EIS failed to account for the mitigation that stems from the State’s existing regulatory framework over coal mining, but it also appears the BLM more broadly seeks to expand its authority. The Proposed RMP/EIS unnecessarily duplicates oversight by imposing additional regulatory requirements over various subject matter that falls within the purview of other State agencies. Proposed RMP/EIS, at Table 2-2 (proposing various requirements to govern air quality, wildlife, soils, reclamation etc.).
The LEC Protests the Proposed RMP/EIS’s Lack of Consideration of Future Technological Opportunities for Rare Earth Elements and Critical Mineral Extraction within Lignite Deposits and the Conflicting Nature of the Proposed RMP/EIS’s Restrictions on Federal Coal Leasing and Federal Policy Efforts, Spending, and Goals.
The LEC previously expressed its concerns regarding the policy implications that restricting federal coal leasing could have on future opportunities for exploration and development of rare earth elements and critical mineral extraction. See May 2023 LEC Comments at Section IV. The Proposed RMP/EIS includes negligible mention of this important consideration. North Dakota has the potential to be a major domestic source of rare earth and critical minerals. Recent reports have identified promising concentrations of these resources in lignite beds as discussed in the North Dakota Geological Survey’s 2023 Report of Investigation No. 133. May 2023 LEC Comments at Section IV and n. 34. “The discovery and description of these [rare earth elements and critical mineral] deposits are important steps in the development of a comprehensive exploration model for the coal and mining industry, with potential to one day reduce the necessity of critical mineral imports, a strategic vulnerability of the United States.”[1] In response to concerns raised by LEC,
BLM stated:
The potential for rare earth/critical minerals development on federal mineral estate administered by the BLM is speculative at this time. . . . An RMP amendment could be done at a later time, when the BLM has more information and a specific project to analyze, to determine if decision adjustments are necessary to relieve potential speculative policy conflicts. Possible changes to federal laws and regulations in response to developing technologies are outside the scope of the RMP.
Proposed RMP/EIS, at Appendix M, M-125. The BLM classifies rare earth/critical mineral development as “speculative” meanwhile acknowledging existing research efforts regarding rare earth element extraction from coal and its potential to “expand demand for federal minerals.” Proposed RMP/EIS at 3-215. The LEC’s request does not require the BLM to speculate regarding potential changes to future federal laws and regulations. The LEC requests the BLM to consider the multiple potential uses lignite offers and to not arbitrarily impose barriers that could negatively impact rare earth and critical mineral development in the near term.
The BLM should not adopt a restrictive framework where the proposed solution is an RMP amendment at some later time. This position is extremely short sighted and is not a reasonable nor viable solution. The NEPA review and RMP process is not expeditious. To the extent the BLM believes a future amendment is the solution to barriers imposed by the Proposed RMP/EIS, the BLM has not considered the time sensitive nature of rapidly developing research and federal support of the same. BLM’s approach to “deal with the issue later” is arbitrary given recent federal policies and funding efforts supportive of advancing critical mineral extraction. See May 2023 LEC Comments, Section V, listing recent examples of federal policy and funding efforts supporting critical mineral extraction.
The LEC Protests Numerous Speculative and Arbitrary Conclusions in the Proposed RMP/EIS.
- The Proposed RMP/EIS’s Restriction to make Federal Coal Minerals Outside a 4-mile Development Area Unavailable to Future Consideration for Leasing is Arbitrary.
Under Alternative D, areas unacceptable for further consideration of federal coal leasing would include areas outside 4 miles from coal mine permit boundaries. Proposed RMP/EIS at 3-214. The BLM acknowledges that “[w]hile no reduction in emissions or coal production from existing mines would result from Alternative D, this Alternative would preclude the development of future mines using federal coal.” Proposed RMP/EIS at 3-214. Under Coal Screen 3, the BLM appears to treat air and climate as a resource and acknowledges that under the multiple-use screen, “existing data showed no air quality standards were exceeded based on the national ambient air quality standards under the Clean Air Act.” Despite the acknowledged lack of exceedances, BLM goes on to apply “an air resources criterion that limits future federal coal leasing to lands near existing mines and infrastructure.” Appendix F, at F-5. The above information speaks for itself. There is no rational
basis for adoption of a 4-mile setback from approved federal mine permit boundaries to preclude federal leasing.
- LEC Protests the buffer applied to the Knife River Indian Villages under Alternative D as arbitrary.
Under Alternative D, the buffer applied to the Knife River Indian Villages Historic Site viewshed is arbitrary and will not have appreciable benefits. Coal Screen No. 3 limits approximately 799 acres of federal lands deemed the Knife River Indian Villages Historic Site viewshed (“Knife River Viewshed”) from future coal leasing. The purpose of the restriction is to limit the potential for mining operations to impact the viewshed. Appendix F, at F-7. As previously explained in the May 2023 LEC Comments, the Knife River Viewshed is a National Historic site located within the heart of North Dakota’s coal country and a surrounding area with significant and diverse energy infrastructure that currently scatters the landscape (numerous windfarms, surface coal-mining operations, voltage electric transmission lines, electric distribution lines, etc.). May 2023 LEC Comments at Section VI(B). Restricting federal coal leasing and development does not mean coal mining will stop within the Knife River Viewshed. Rather, federal coal leased areas will be restricted while mining on non-federal leased parcels continues. For this reason, the Knife River Viewshed restriction will not be successful in reducing impacts to the viewshed. The Proposed RMP/EIS contains only general references to the viewshed restriction and is void of any explanation or meaningful details. See Proposed RMP/EIS at 2-37; 3-214, 251; Appendix F, at F-7. Simply stating the viewshed is unacceptable for further consideration and referencing the numbers of acres that will be taken out of production without further discussion or analysis is clearly arbitrary. For this reason, there is no rational basis for the BLM to adopt the Knife River Viewshed restriction.
Conclusion
While the LEC appreciates the opportunity to provide comment and submit this Protest of the Proposed RMP/EIS, the LEC urges the BLM to reconsider the Proposed RMP/EIS Alternative D. The LEC looks forward to continued opportunities to work with the BLM to advance well-reasoned and balanced policies governing North Dakota coal.
Thank you,
Jason Bohrer
President and CEO
Lignite Energy Council
1016 E. Owens Ave.
Bismarck, ND 58502
701.258.7117
[1] Helms, Lynn, North Dakota Department of Mineral Resources, Press Release: Ancient subtropical soils may hold the key to critical mineral enrichment in the Williston Basin of North Dakota, (April 23, 2023) https://www.dmr.nd.gov/dmr/sites/www/files/documents/Survey/RI133/ND%20Critical%20Minerals%20Press%20Release.pdf.