Tenth Circuit allows Mountain Coal Company to intervene in NEPA challenge
In WildEarth Guardians v. United States Forest Service, the Tenth Circuit has reversed the United States District Court for the District of Colorado and allowed Mountain Coal Company to intervene in the Forest Service’s approval of plans to allow the venting of methane gas from “a large underground coal mine lying beneath the Grand Mesa, Uncompahgre, and Gunnison National Forests in Colorado.” Given the stated intent of a number of environmental groups to oppose coal projects on grounds including potential effects on climate, intervention decisions like the Tenth Circuit’s are an important tool for potentially affected companies to participate in those challenges.
WildEarth Guardians – an environmental group with a self-professed goal of “pounding away on the idea that the climate crisis mandates a serious curb in our use of fossil fuels” – sued the Forest Service and the Department of the Interior claiming that they violated NEPA by approving methane gas venting without evaluating: “(1) reasonable alternatives to methane venting, (2) measures to mitigate the environmental impact of methane venting, and (3) the global warming impact of methane venting.”
Mountain Coal moved to intervene of right or, in the alternative, permissively, on the side of the government. The District Court denied the motion to intervene on the ground that Mountain Coal was adequately represented by the government and had not demonstrated its interests would be impaired by the litigation.
The Tenth Circuit disagreed, finding that Mountain Coal, which had already begun construction of methane-drainage wells and mining at the site, has a “direct economic stake in the subject of the litigation,” and that if plaintiff succeeded on its declaratory or injunctive relief claims, “operation of the West Elk Mine will be impaired, or even halted.” The Court separately found the possibility that the government would not adequately represent the interests of Mountain Coal because its litigation goals may not match those of Mountain Coal and, therefore, Mountain Coal “should not be required to rely on the defendants to represent its interests.” The Tenth Circuit remanded the case with instructions to grant Mountain Coal’s motion to intervene.
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