Plaintiff challenged OSMRE approval to expand a coal
mine in south-central Montana under NEPA.
OSMRE did not have a strong argument that its position was substantially justified. A panel of the Ninth Circuit held, inter alia, that OSMRE's 2018 FONSI was arbitrary and capricious because OSMRE did not use "science based criteria" to justify its statement that greenhouse gas (GHG) emissions related to the project were not "significant," as that term is used in NEPA.
The Ninth Circuit remanded the case back to the district court to determine whether the agency was required to prepare an EIS and whether the mining plan modification should be immediately vacated. Id. at ll77. The 9th Circuit amended its opinion on June 21, 2022 clarifying its instructions on remand.