A major coal strip mine in Montana has suffered two recent legal blows. The Montana Supreme Court Monday (Nov. 27) halted expansion of Denver-based Westmoreland Mining’s Rosebud mine, which supplies the two-unit, 1,480-MW Colstrip coal-fired power plant. Three days earlier, the U.S. Ninth Circuit Court of Appeals in San Francisco rejected a Westmoreland appeal of a lower court decision remanding an earlier Rosebud expansion back to the U.S. Interior Department.
The Montana Supreme Court halted an expansion of the mine in a suit brought by environmental groups challenging the impact on local waters. The seven-member court unanimously overturned a 2015 permit the state Department of Environmental Quality issued to allow a 49-acre expansion in “Area B” of the mine in the southeast of the state, the northern extent of the massive Powder River Basin coal field.
The Montana Environmental Information Center and the local Sierra Club chapter challenged the expansion of the mine that produces some 10 million tons annually. The groups charged that the state regulators failed to adequately consider the increase in salinity of a local tributary to the Yellowstone River caused by the expansion. As a result, granting the permit violated the Montana Strip and Underground Mine Reclamation Act, which is based on the 1978 Surface Mining Control and Reclamation Act.
In a summary of the decision, the court explained, “During the permitting process, Westmoreland acknowledged a projected 13% increase in salinity in the alluvium of East Fork Armell’s Creek from the proposed mining activities. Although the additional salts in the alluvium would not be a statistically significant concentration, they would increase the length of time during which higher pollutant levels would be present.”
The court ruled that the state’s Board of Environmental Review “made several errors when it upheld DEQ’s finding that Westmoreland had demonstrated that the proposed mining activity is designed to prevent material damage to the hydrological balance in the area.” The board, the court’s summary noted, “failed to properly consider the cumulative impacts of increased mining activity on the area water quality.” The board is a quasi-judicial body appointed by Montana’s governor, Democrat Steve Bullock at the time of the 2015 expansion permit. The ruling remands the case to the review board.
MEIC Co-director Anne Hedges told Montana Free Press, “We absolutely hope that this decision helps prevent harm from occurring at the other areas of the mine that have been permitted…. This is an enormous mine that has hammered water quality and everybody has turned a blind eye to that for a very long time.”
Westmoreland spokesperson Jon Heroux told the Free Press that the decision is not expected to compromise mine operations. The Colstrip plant was designed to burn the coal from the 25,500-acre strip mine supplies coal to the originally four-unit, now two-unit, power plant.
In the Ninth Circuit ruling in California, the court in an unpublished decision said Westmoreland’s appeal of a September 2022 ruling by the Federal District Court in Billings rejecting a 2019 approval by the Interior Department’s Office of Surface Mining Reclamation and Enforcement (OSM) expansion of the massive, 7,500-acre Area F, remanding the case back to Interior, was untimely. The court said Westmoreland must go back to Interior for a new review before it can begin the judicial process again.
In the 2022 federal court ruling in the case brought by the MEIC, Judge Susan Waters granted the motion for summary judgment, finding OSM’s environmental impact statement for the expansion was essentially a slap-dash job that ignored or downplayed major issues “including the cumulative effects of the mine on surface water, indirect effects of water withdrawals from the Yellowstone River, socioeconomic impacts of [greenhouse gases], and alternatives to conform with [the National Environmental Policy Act].” OSM’s approval of the permit was therefore arbitrary and capricious. She gave OSM 19 months to come up with a new analysis or the permit would be permanently vacated.
Melissa Hornbeim of the Western Environmental Law Center’s Helena office commented, “The court found that OSM once again put its thumb on the scale by considering the benefits of the mine but refusing to disclose the on-the-ground impacts that coal mining and burning have on area waters, wildlife, and the climate. The law doesn’t allow that type of gamesmanship, and the climate and our stressed water resources deserve better.”
–Kennedy Maize