350 Montana v. Debra Haaland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

350 MONTANA; MONTANA No. 20-35411
ENVIRONMENTAL INFORMATION
CENTER; SIERRA CLUB; WILDEARTH D.C. No.
GUARDIANS, 9:19-cv-00012-
Plaintiffs-Appellants, DWM

v.
OPINION
DEBRA HAALAND, Secretary of the
Department of the Interior; U.S.
OFFICE OF SURFACE MINING, an
agency within the U.S. Department
of the Interior; U.S. DEPARTMENT OF
THE INTERIOR; MARCELO CALLE, in
his official capacity as Program
Support Division Manager of U.S.
Office of Surface Mining Western
Region; DAVID BERRY, in his
official capacity as Regional
Director of U.S. Office of Surface
Mining Western Region; GLENDA
OWENS, in her official capacity as
Deputy Director of U.S. Office of
Surface Mining; LAURA DANIEL-
DAVIS, in her official capacity as
Principal Deputy Assistant Secretary
of Land and Minerals Management
of the U.S. Department of the
Interior; MARTHA WILLIAMS, in her
2 350 MONTANA V. HAALAND

official capacity as Director of U.S.
Fish and Wildlife Service; UNITED
STATES FISH AND WILDLIFE
SERVICE, an agency within the U.S.
Department of the Interior,
Defendants-Appellees,

SIGNAL PEAK ENERGY, LLC,
Intervenor-Defendant-Appellee.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding

Argued and Submitted June 16, 2021
Anchorage, Alaska

Filed April 4, 2022

Before: Johnnie B. Rawlinson, Morgan Christen, and
Ryan D. Nelson, Circuit Judges.

Opinion by Judge Christen;
Dissent by Judge R. Nelson
 350 MONTANA V. HAALAND 3

SUMMARY*

Mining / Environmental Law

The panel affirmed in part, and reversed in part, the
district court’s summary judgment in favor of the U.S.
Department of the Interior (“Interior”) on all but one claim in
an action brought by environmental groups challenging
Interior’s Office of Surface Mining Reclamation and
Enforcement’s approval of a proposal to expand a coal mine
in south-central Montana.

Signal Peak Energy, LLC, an intervenor-appellee, sought
to expand its mining operations. The expansion is expected
to result in the emission of 190 million tons of greenhouse
gases (GHGs). Interior published an Environmental
Assessment (EA) in which it explained that the amount of
GHGs emitted over the 11.5 years the Mine is expected to
operate would amount to 0.44 percent of the total GHGs
emitted globally each year. Based on a 2018 EA, Interior
found that the project’s GHG emissions would have no
significant impact on the environment.

The district court granted summary judgment in favor of
Interior on all but plaintiffs’ claim that Interior failed to
consider the risk of coal train derailments. The district court
vacated the 2018 EA, but not Interior’s approval of the Mine
Expansion, and remanded the matter to Interior to consider
the risk of train derailment. Interior subsequently published

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 350 MONTANA V. HAALAND

a fourth EA that incorporated the 2018 EA and considered
train derailment risks for the first time.

As a threshold issue, Signal Peak argued that the case was
moot because plaintiffs challenged the 2018 EA, but the 2018
EA was superseded by the EA Interior published in 2020 after
the district court remanded the case to the agency to consider
the risk of train derailments. The panel held that the parties’
dispute was not moot. The 2018 EA pertaining to the Mine
Expansion neither disappeared nor was it replaced. The
relevant portions of it were expressly incorporated into the
2020 EA and reissued. Accordingly, the panel retained the
ability to order relief in this case.

The panel held that Interior violated the National
Environmental Policy Act (NEPA) by failing to provide a
convincing statement of reasons why the project’s impacts
were insignificant. The 2018 EA failed to articulate any
science-based criteria of significance in support of its finding
of no significant impact (FONSI), but instead relied on the
arbitrary and conclusory determination that the Mine
Expansion project’s emissions would be relatively minor. The
panel, however, was not persuaded that Interior was required
to use the Social Cost of Carbon metric (a method of
quantifying the impacts of GHGs that estimates the harm, in
dollars, caused by each incremental ton of carbon dioxide
emitted into the atmosphere in a given year) to quantify the
environmental harms stemming from the project’s GHG
emissions. The panel further held that it was less clear
whether the agency had any other metric available to assess
the impact of this project. Because additional factfinding was
necessary to decide whether an environmental impact
statement (EIS) was required, and the record concerning the
 350 MONTANA V. HAALAND 5

consequences of vacatur was not developed, the panel
remanded to the district court.

Judge R. Nelson dissented. He would hold that the
agency’s finding – that the incremental effects of 0.04% of
annual GHG emissions were “minor” – was not arbitrary or
capricious under the Administrative Procedure Act (APA);
and the majority’s contrary holding was wrong given the
deferential APA review. Judge Nelson agreed with the
majority’s decision not to vacate Interior’s approval of the
Mine Expansion or direct Interior to prepare an EIS. He
would hold that Interior’s FONSI was neither arbitrary nor
capricious under NEPA. Even if it were, the action should be
remanded to the agency to compile a new administrative
record and final decision, not to the district court.

COUNSEL

Shiloh S. Hernandez (argued) and Melissa A. Hornbein
Western Environmental Law Center, Helena, Montana;
Nathaniel Shoaff, Sierra Club, Oakland, California; for
Plaintiffs-Appellants.

Brian C. Toth (argued), Michelle-Ann Williams, and Robert
J. Lundman, Attorneys; Eric Grant, Deputy Assistant
Attorney General; Jonathan D. Brightbill, Principal Deputy
Assistant Attorney General; Environment & Natural
Resources Division, United States Department of Justice,
Washington, D.C.; Kristen C. Guerriero and Emily D. Morris,
Attorneys; Office of the Solicitor, United States Department
of the Interior, Washington, D.C.; for Defendants-Appellees.
6 350 MONTANA V. HAALAND

John C. Martin (argued), Holland & Hart LLP, Washington,
D.C.; Hadassah M. Reimer, Holland & Hart LLP, Jackson,
Wyoming; Sarah C. Bordelon, Holland & Hart LLP, Reno,
Nevada; for Intervenor-Defendant-Appellee.

Mark Norman Templeton and Robert Adam Weinstock,
Attorneys; Andrew Burchett, Justin Taleisnik, and Daniel
Abrams, Clinic Law Students; Abrams Environmental Law
Clinic, Chicago, Illinois; for Amicus Curiae Professor
Michael Greenstone.

Richard L. Revesz, Max Sarinsky, and Jason A. Schwartz,
Institute for Policy Integrity, New York, New York, for
Amicus Curiae Institute for Policy Integrity at New York
University School of Law.

OPINION

CHRISTEN, Circuit Judge:

In 2018, the Department of the Interior’s Office of
Surface Mining Reclamation and Enforcement (Interior)
approved a proposal to expand a coal mine in south-central
Montana. The expansion is expected to result in the emission
of 190 million tons of greenhouse gases (GHGs). Interior
published an Environmental Assessment (EA) in which it
explained that the amount of GHGs emitted over the
11.5 years the Mine is expected to operate would amount to
0.44 percent of the total GHGs emitted globally each year.1

1
The 11.5 years includes two years during which the Mine would be
operating regardless of the approval at issue in this case. Interior’s
approval of the project will allow the Mine to operate an additional nine
 350 MONTANA V. HAALAND 7

The 2018 EA also calculated the project’s GHG emissions as
a percentage of the United States’ annual emissions and
Montana’s annual emissions, but these domestic calculations
only included the emissions generated by extracting and
transporting the coal. Emissions from combustion of the
coal—which account for 97 percent of the projected GHG
emissions from the project—were not included in the
domestic calculations. Based on the above comparisons,
Interior found that the project’s GHG emissions would have
no significant impact on the environment. Interior did not
prepare an environmental impact statement (EIS).

We conclude that Interior violated the National
Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.,
by failing to provide a “convincing statement of reasons to
explain why [the] project’s impacts are insignificant.” Bark
v. United States Forest Serv., 958 F.3d 865, 869 (9th Cir.
2020). The 2018 EA fails to articulate any science-based
criteria for significance in support of its finding of no
significant impact (FONSI), relying instead on the arbitrary
and conclusory determination that the Mine Expansion
project’s emissions will be relatively “minor.” But
comparing the emissions from this point source against total
global emissions predestined that the emissions would
appear relatively minor, even though, for each year of its
operation, the coal from this project is expected to generate
more GHG emissions than the single largest source of GHG
emissions in the United States. Separately, the EA’s
domestic comparisons fail to satisfy NEPA because Interior
did not account for the emissions generated by coal

years. During that time, approximately 190 million tons of GHGs are
expected to be emitted. Over the entire 11.5 years, 240.1 million tons of
GHGs are expected to be emitted.
8 350 MONTANA V. HAALAND

combustion, obscuring and grossly understating the
magnitude of the Mine Expansion’s emissions relative to
other domestic sources of GHGs. See League of Wilderness
Defs./Blue Mountains Biodiversity Project v. Connaughton,
752 F.3d 755, 761 (9th Cir. 2014). Though we conclude that
Interior failed to articulate convincing reasons to support its
FONSI, we are not persuaded that Interior was required to use
the Social Cost of Carbon metric to quantify the
environmental harms stemming from the project’s GHG
emissions. What is less clear is whether the agency had any
other metric available to assess the impact of this project.

The presumptive remedy for violations of NEPA and the
Administrative Procedure Act is vacatur. 5 U.S.C. § 706
(“The reviewing court shall . . . hold unlawful and set aside
agency action, findings, and conclusions found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.”); All. for the Wild Rockies v. U.S.
Forest Serv., 907 F.3d 1105, 1121–22 (9th Cir. 2018). Here,
because additional factfinding is necessary to decide whether
an EIS is required and, in any event, the record concerning
the consequences of vacatur is not developed, we remand to
the district court.

I

i

Intervenor-Appellee Signal Peak Energy, LLC operates
Bull Mountains Mine No. 1 (the Mine), which is located
approximately thirty miles north of Billings, Montana. In
2008, Signal Peak applied to the Bureau of Land
Management (BLM) to lease approximately 2,679.76 acres of
federal coal. See Mont. Env’t. Info. Ctr. v. U.S. Off. of
 350 MONTANA V. HAALAND 9

Surface Mining, 274 F. Supp. 3d 1074, 1083 (D. Mont. 2017).
BLM processed Signal Peak’s application, prepared an
Environmental Assessment in conjunction with Interior, and
issued a FONSI in 2011.2

In 2012, Signal Peak applied to the Montana Department
of Environmental Quality (Montana DEQ) to amend its
mining permit. Specifically, Signal Peak sought to expand its
mining operation by 7,161 acres, “adding 176 million tons of
coal to its permitted mineable reserves.” Mont. Env’t Info.
Ctr., 274 F. Supp. 3d at 1084. The Montana DEQ approved
Signal Peak’s application. Id.

In 2013, Signal Peak requested approval of a mining
plan modification for its federal coal lease from OSMRE. Id.
The 2013 modification request sought to expand coal
development and mining operations into 2,539.76 acres of the
remaining federal coal lands. Id. Signal Peak describes the
area as “a ‘checkerboard’ of federal minerals interspersed
with privately-owned and state-owned minerals.” Interior
prepared a second EA, issued a FONSI, and approved the
mining plan modification in 2015.

2
BLM and the Office of Surface Mining Reclamation and
Enforcement (OSMRE) are agencies within the Department of Interior.
BLM oversees the leasing of federal coal, 43 C.F.R. § 3480.0-6(a)(3) and
OSMRE oversees surface coal mining operations, 43 C.F.R.
§ 3480.0-6(a)(1). Because Signal Peak applied to lease and mine federal
coal in 2008, BLM and OSMRE cooperatively prepared an EA in 2011.
Signal Peak’s subsequent requests did not concern leasing new federal
coal but only sought to expand Signal Peak’s mining operation to the
remaining federal coal lands it had leased. Accordingly, OSMRE was the
lead agency in preparing the 2018 EA, and BLM was only identified as a
“cooperator in preparation” of the 2018 EA that “provided technical
review and assistance in the analysis.”
10 350 MONTANA V. HAALAND

Plaintiffs filed a complaint in the United States District
Court for the District of Montana challenging Interior’s 2015
EA, FONSI, and approval of the Mine Expansion on several
different grounds. Mont. Env’t Info. Ctr., 274 F. Supp. 3d
at 1084–85. Relevant here, plaintiffs argued Interior
arbitrarily and capriciously quantified the socioeconomic
benefits of the Mine Expansion while failing to use an
available metric called the Social Cost of Carbon (SCC) to
quantify the costs of GHG emissions. Id. at 1094–99. The
district court agreed, reasoning that because the SCC was
available and capable of quantifying the costs of GHG
emissions, Interior improperly “place[d] [its] thumb on the
scale by inflating the benefits of the [Mine Expansion] while
minimizing its impacts.” Id. at 1098. The district court
partially granted plaintiffs’ motion for summary judgment,
vacated the 2015 EA, and enjoined mining of federal coal in
the expanded Mine area pending Interior’s compliance with
NEPA.

On remand from the district court, Interior completed a
third EA and FONSI and again approved Signal Peak’s Mine
Expansion in 2018. Interior’s 2018 EA declined to employ
the SCC to quantify the costs of the project’s anticipated
GHG emissions for four reasons: (1) the SCC was originally
developed for use in rulemakings, not individual
adjudications; (2) the technical supporting documents and
associated guidance underyling the SCC had been withdrawn;
(3) NEPA does not require agencies to perform cost-benefit
analyses; and (4) the 2018 EA did not fully quantify the
social benefits of “coal-fired energy production,” and
therefore using the SCC to quantify the costs of GHG
 350 MONTANA V. HAALAND 11

emissions from the Mine Expansion “would yield information
that is both potentially inaccurate and not useful.” 3

Plaintiffs returned to district court to challenge Interior’s
2018 EA, FONSI, and approval of the Mine Expansion.
Plaintiffs’ first argument was that Interior violated NEPA
again by declining to employ the SCC analysis. 350 Montana
v. Bernhardt, 443 F. Supp. 3d 1185, 1197 (D. Mont. 2020).
Plaintiffs also argued:

Signal Peak argues the Office acted
reasonably when it quantified the greenhouse
gas emissions from the mine expansion,
calculated what percentage of total annual
global emissions the mine’s emissions
represent (0.04%), and determined that the
mine expansion’s contribution would be
minor. (Doc. 42 at 16.) The comparison of
the mine expansion’s emissions to global
emissions is not reasonable; it is misleading;
and it is unlawful. See supra note 10. It is
easy, but misleading, to make highly
significant effects appear trivial, merely by
swelling the denominator, as the EA did. Sw.
Elec. Power Co. v. EPA, 920 F.3d 999,
1032-33 (5th Cir. 2019) (a “very small
portion” of a “gargantuan source of [harmful]

3
Concerning the SCC’s accuracy, the 2018 EA explained that “the
dollar cost figure [produced by the SCC] is generated in a range and
provides little benefit in assisting” the decision maker. For example, the
2018 EA noted that the SCC produced a cost figure ranging from
$4.2 billion to $22.1 billion “depending on dollar value and the discount
rate used.”
12 350 MONTANA V. HAALAND

pollution” may nevertheless “constitute[ ] a
gargantuan source of [harmful] pollution on
its own terms”); accord Guardians, 2019 WL
2404860, at *9 (dilution misleading).

Pls.’ Response-Reply at 15–16, 350 Montana v. Bernhardt,
443 F. Supp. 3d 1185 (D. Mont. 2020) (No. 9:19-CV-12),
2019 WL 4954687. The district court was persuaded that
Interior’s rationale for not using the SCC was supported by
the record and satisfied NEPA. 350 Montana, 443 F. Supp.
3d at 1196. Implicit in the district court’s ruling was the
conclusion that the metric Interior did use constituted the
required “hard look” at the Mine Expansion’s environmental
effects and adequately supported Interior’s FONSI. The
district court granted summary judgment in favor of Interior
on all but plaintiffs’ claim that Interior failed to consider the
risk of coal train derailments along the corridor between the
Mine site and the port at Vancouver, British Columbia. Id.
at 1202. The district court vacated the 2018 EA, but not
Interior’s approval of the Mine Expansion, and remanded the
matter to Interior to consider the risk of train derailments.
Interior has since published a fourth EA that incorporates the
2018 EA and considers the risk of train derailments for the
first time (the 2020 EA).4

4
The 2020 EA only addresses the risk of environmental impacts from
train derailments. It incorporated in full the 2018 EA’s analysis and
conclusions relating to GHGs and climate change to determine the Mine
Expansion will not have a significant impact on the environment.
U.S. DEP’T OF INTERIOR OFF. OF SURFACE MINING RECLAMATION AND
ENF’T, BULL MOUNTAINS MINE NO. 1 FEDERAL MINING PLAN
MODIFICATION ENVIRONMENTAL ASSESSMENT at 11, 15 (Oct. 2020),
https://www.osmre.gov/sites/default/files/inline-files/102020BullMtnM
ineEA_Final.pdf.
 350 MONTANA V. HAALAND 13

Plaintiffs timely appealed. We have jurisdiction pursuant
to 28 U.S.C. § 1291.

ii

At the outset, we note a stark contrast between this appeal
and previous cases, in which the impact of GHGs on global
warming, climate change, and the environment was debated.
See, e.g., Massachusetts v. E.P.A., 549 U.S. 497, 507–13
(2007) (citation omitted) (discussing the status of the
scientific consensus concerning GHGs and climate change
and noting EPA’s determination that regulating GHG
emissions would be unwise because “a causal link between
[GHGs and climate change] cannot be unequivocally
established”). Here, the parties do not dispute that GHGs
cause global warming, that global warming causes climate
change, or that human activity is likely the primary cause of
these phenomena.5 Indeed, Interior’s 2018 EA includes
dozens of sobering and unchallenged observations concerning
the effects of global warming and climate change on the
environment, including:

• “This period is now the warmest in the history of
modern civilization,” and “[b]ased on extensive
evidence, it is extremely likely that human activities,
especially emissions of GHGs, are the dominant cause

5
The 2018 EA explains that “global warming refers to the gradual
increase, observed or projected, in global surface temperature,” while
climate change refers to “[c]hanges in average weather conditions that
persist over multiple decades or longer” and “encompasses both increases
and decreases in temperature, as well as shifts in precipitation, changing
risk of certain types of severe weather events, and changes to other
features of the climate system.”
14 350 MONTANA V. HAALAND

of the observed warming since the mid-20th
century.”6

• “Thousands of studies conducted by researchers
around the world have documented changes in
surface, atmospheric, and oceanic temperatures;
melting glaciers; diminishing snow cover; shrinking
sea ice; rising sea levels; ocean acidification; and
increasing atmospheric water vapor.”7

• “Global sea level rise has already affected the US; the
incidence of daily tidal flooding is accelerating in
more than 25 Atlantic and Gulf Coast cities.”8

• “Global average sea levels are expected to continue to
rise by at least several inches in the next 15 years and
by 1 to 4 feet by 2100. A rise of as much as 8 feet by
2100 cannot be ruled out.”9

• “The incidence of large forest fires in the western US
and Alaska has increased since the early 1980s and is
projected to further increase in those regions as the

6
U.S. DEP’T OF INTERIOR OFF. OF SURFACE MINING RECLAMATION
AND ENF’T, BULL MOUNTAINS MINE NO. 1 FEDERAL MINING PLAN
MODIFICATION ENVIRONMENTAL ASSESSMENT at D-2–D-4, App’x D
(Aug. 2018) (citing U.S. GLOBAL CHANGE RSCH. PROGRAM, FOURTH
NATIONAL CLIMATE ASSESSMENT (2017)).
7
Id.
8
Id.
9
Id.
 350 MONTANA V. HAALAND 15

climate changes, with profound changes to regional
ecosystems.”10

• “It is very likely that heat waves will occur more
often and last longer, and that extreme precipitation
events will become more intense and frequent in
many regions.”11

• “The magnitude of climate change beyond the next
few decades will depend primarily on the amount of
GHGs (especially CO2) emitted globally.”12

• “Continued emission of GHGs will cause further
warming and long-lasting changes in all components
of the climate system, increasing the likelihood of
severe, pervasive, and irreversible impacts for people
and ecosystems.”13

Far from reflecting an ongoing debate, the 2018 EA
succinctly depicts the impact of GHGs on the environment in
the following graphic illustration: “GHG emissions and other

10
Id.
11
Id. (citing INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE
(IPCC), CLIMATE CHANGE 2014: SYNTHESIS REPORT (2014)). We note
that the information contained in the 2014 IPCC report has been updated.
See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE
C H ANGE 2021: T HE P HYSI CA L S C I E NC E B A S I S (2021),
https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WG
I_Full_Report.pdf.
12
Id.
13
Id.
16 350 MONTANA V. HAALAND

climate drivers º global warming º climate change º
environmental effects.”

Against this uncontroverted backdrop, Interior found that
the Mine Expansion will have no significant impacts on the
climate or the environment relative to cumulative statewide,
national, and global GHG emissions. Interior based its
FONSI on three simple comparisons: (1) a comparison of the
total projected GHG emissions generated by the 11.5 year
Mine Expansion project against total annual global GHG
emissions; (2) a comparison of the projected GHG emissions
from the Mine Expansion’s activities in the United States
against the United States’ annual GHG emissions; and (3) a
comparison of the projected GHG emissions from the Mine
Expansion’s activities in the United States against Montana’s
annual GHG emissions. Though Interior asserts it
“quantifie[d] the emissions estimated to result from burning
the coal . . . [and] analyzes them in the global, national, and
regional contexts,” this statement is somewhat misleading.
The comparison of the emissions generated by the Mine
Expansion’s activities in the United States against national
GHG emissions and Montana’s emissions did not account for
combustion of the coal overseas; the two domestic
comparisons only considered emissions generated by mining
the coal and transporting it to a port in Vancouver, British
Columbia.

II

We review de novo a district court’s order granting
summary judgment. Bark, 958 F.3d at 869. “The
Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A),
provides the governing standard for courts reviewing an
agency’s compliance with NEPA . . . .” Id. Pursuant to the
 350 MONTANA V. HAALAND 17

APA, we must “hold unlawful and set aside agency action,
findings, and conclusions” that are found to be “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” § 706(2)(A). Agency action is
arbitrary and capricious “if the agency has relied on factors
which Congress has not intended it to consider, entirely failed
to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983).

III

As a threshold issue, Signal Peak argues this case is moot
because plaintiffs challenge the 2018 EA. Signal Peak
contends the 2018 EA has been superseded by the EA Interior
published in 2020 after the district court remanded the case to
the agency to consider the risk of train derailments. Interior
takes no position on whether the 2020 EA moots this appeal.

“The doctrine of mootness, which is embedded in Article
III’s case or controversy requirement, requires that an actual,
ongoing controversy exist at all stages of federal court
proceedings.” Bayer v. Neiman Marcus Grp., Inc., 861 F.3d
853, 862 (9th Cir. 2017) (citation and internal quotation
marks omitted). “The basic question in determining
mootness is whether there is a present controversy as to
which effective relief can be granted.” Id. (citation and
internal quotation marks omitted). An action “‘becomes
moot only when it is impossible for a court to grant any
effectual relief whatever to the prevailing party.’” Id.
(quoting Chafin v. Chafin, 568 U.S. 165, 172 (2013)).
18 350 MONTANA V. HAALAND

Here, though the district court’s 2020 opinion and order
vacated the 2018 EA, the court remanded only for Interior to
consider the risk of train derailments. The district court
neither vacated Interior’s approval of the Mine Expansion nor
ordered reconsideration of the rest of the 2018 EA,
350 Montana, 443 F. Supp. 3d at 1202, and the 2020 EA
unequivocally explained that “[m]ost of the information
provided in the 2018 EA has not changed and, therefore, is
herein incorporated by reference in this EA.”14 Significant
for purposes of this appeal, the 2020 EA incorporated in full
the 2018 EA’s analysis of the Mine Expansion’s GHG
emissions and the impact of those emissions on global
warming, climate change, and the environment. Id. at 15.

That the 2018 EA is expressly incorporated into the 2020
EA distinguishes this case from the cases Signal Peak cites.
For example, in Wyoming v. U.S. Department of Agriculture,
414 F.3d 1207 (10th Cir. 2005), Wyoming challenged a rule
implemented by the U.S. Forest Service. Id. at 1210–11. The
rule was enjoined by the district court and, the day after
argument in the circuit court, the Forest Service “replac[ed]”
the challenged rule with a materially different one. Id.
at 1211. Because “[t]he portions of the [original rule] that
were substantively challenged by Wyoming no longer
exist[ed],” the Tenth Circuit held that the parties’ dispute was
moot because the court could not “render a decision on the
validity of the now nonexistent [original rule].” Id.
at 1212–13. Similarly, in Theodore Roosevelt Conservation
Partnership v. Salazar, the plaintiff argued the Bureau of
Land Management failed to adhere to the requirements found

14
DEP’T OF INTERIOR OFF. OF SURFACE MINING RECLAMATION AND
ENF’T, BULL MOUNTAINS MINE NO. 1 FEDERAL MINING PLAN
MODIFICATION ENVIRONMENTAL ASSESSMENT at 1 (Oct. 2020).
 350 MONTANA V. HAALAND 19

in a then-superseded Record of Decision. 661 F.3d 66, 78–79
(D.C. Cir. 2011). Because the Record of Decision had been
superseded, the D.C. Circuit reasoned that it could “neither
invalidate, nor require the Bureau to adhere to, a Record of
Decision that has ‘disappeared into the regulatory
netherworld.’” Id. at 79 (quoting Nw. Pipeline Corp. v.
F.E.R.C., 863 F.2d 73, 77 (D.C. Cir. 1988)).

The 2018 EA pertaining to the Mine Expansion has
neither disappeared nor been replaced. The relevant portions
of it were expressly incorporated into the 2020 EA and
reissued. Accordingly, we retain the ability to order relief in
this case, and the parties’ dispute is not moot.

IV

Plaintiffs argue that Interior violated NEPA by failing to
take a “hard look” at the actual environmental effects of the
Mine Expansion’s GHG emissions, and by failing to provide
a convincing statement of reasons for its finding that the
Mine Expansion will not have a significant effect on the
environment. Plaintiffs again press their argument that the
agency should have used the Social Cost of Carbon metric,
and also argue that the three comparisons the agency did use
fall short of the mark:

Without some actual analysis of the
incremental impacts “it would be impossible
for [an agency] to know whether a change in
GHG emissions of 0.2%, or 1% or 5% or 10%
will be a significant step toward averting the
tipping point and irreversible adverse climate
change.” Ctr. For Biological Diversity,
538 F.3d at 1221 (internal quotation marks
20 350 MONTANA V. HAALAND

and ellipses omitted) (argument of appellant);
id. at 1221–23 (accepting argument). . . .

Here, in direct contravention of the teaching
of Center for Biological Diversity, OSM’s
analysis of the mine’s 240 million tons of
GHG emissions consisted of nothing more
than comparing this figure to total global
GHG emissions and then discounting it as less
than one percent and therefore “minor” and
“insignificant.” ER0135–36. As in Center
for Biological Diversity, this unenlightening
analysis violated NEPA.”

“We examine the EA with two purposes in mind: to
determine whether it has adequately considered and
elaborated the possible consequences of the proposed agency
action when concluding that it will have no significant impact
on the environment, and whether its determination that no
EIS is required is a reasonable conclusion.” Ctr. for
Biological Diversity v. Nat’l Highway Traffic Safety Admin.,
538 F.3d 1172, 1215 (9th Cir. 2008). “Federal agencies must
undertake a ‘full and fair’ analysis of the environmental
impacts of their activities,” and “NEPA imposes procedural
requirements designed to force agencies to take a ‘hard look’
at environmental consequences” of their proposed actions.
League of Wilderness Defs./Blue Mountains Biodiversity
Project, 752 F.3d at 762–63 (citation omitted). To satisfy the
“hard look” requirement, an agency must provide “a
reasonably thorough discussion of the significant aspects of
the probable environmental consequences.” Ctr. for
 350 MONTANA V. HAALAND 21

Biological Diversity, 538 F.3d at 1194 (citation and internal
quotation marks omitted).15

“In reviewing an agency’s decision not to prepare an EIS,
the arbitrary and capricious standard under the APA requires
this court ‘to determine whether the agency has taken a ‘hard
look’ at the consequences of its actions, ‘based [its decision]
on a consideration of the relevant factors,’ and provided a
‘convincing statement of reasons to explain why a project’s
impacts are insignificant.’” Barnes v. U.S. Dep’t of Transp.,
655 F.3d 1124, 1132 (9th Cir. 2011) (quoting Env’t Prot.
Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1009 (9th Cir.
2006)). “The unequivocal intent of NEPA is to require
agencies to consider and give effect to the environmental
goals set forth in the Act”—informing the public and
ensuring agency consideration of the environmental impacts
of its actions—“not just to file detailed impact studies which
will fill governmental archives.” Ctr. for Biological
Diversity, 538 F.3d at 1214–15 (quoting Env’t Def. Fund, Inc.
v. Corps of Eng’rs of U.S. Army, 470 F.2d 289, 298 (8th Cir.
1972)).

The 2018 EA thoroughly supported the relationship
between GHG emissions and climate change and included an
unvarnished summary of the broad consensus that has
emerged from the scientific community—that climate change

15
Regulations in effect at the time Interior issued its FONSI required
agencies to consider “both context and intensity” when determining
whether an action has a significant effect on the human environment.
40 C.F.R. § 1508.27. “Context . . . means that the significance of an
action must be analyzed in several contexts such as society as a whole
(human, national), the affected region, the affected interests, and the
locality.” Id. § 1508.27(a). “Intensity . . . refers to the severity of
impact.” Id. § 1508.27(b).
22 350 MONTANA V. HAALAND

is having, and is expected to continue to have, alarming
effects on our environment. The 2018 EA also calculated that
the GHG emissions generated over the life of the Mine
Expansion would total “approximately 0.44 percent of annual
(single year) global GHG emissions.” But in the single
sentence that followed, the EA merely asserted that “while
the [Mine Expansion] would contribute to the effects of
climate change,” its “contribution relative to other global
sources [of GHGs] would be minor in the short- and long-
term on an annual basis.” With that, the EA summarily
concluded that the Mine Expansion will not have a significant
impact on the environment.

Interior did not cite any scientific evidence supporting the
characterization of the project’s emissions as “minor”
compared to global emissions, nor did it identify any science-
based criteria the agency used in its determination. “Without
some articulated criteria for significance in terms of
contribution to global warming that is grounded in the record
and available scientific evidence,” id. at 1224–25 (internal
quotation marks and citation omitted), Interior’s conclusion
that the Mine Expansion’s GHG emissions will be “minor” is
deeply troubling and insufficient to meet Interior’s burden.

Counsel for Interior and Signal Peak both directed the
court to Appendix D as support for Interior’s FONSI.
Appendix D is included as an addendum to this decision. It
reflects the scientific community’s agreement that GHGs
cause global warming and climate change, and identifies
consequences of climate change that the agency describes as
“profound,” but Appendix D is untethered to the agency’s
conclusion that the Mine Expansion will have no significant
impact on the environment. The reader is left with the
agency’s unsupported assertion that the Mine Expansion’s
 350 MONTANA V. HAALAND 23

GHG emissions will be “minor,” which boils down to an
observation that could be applied to any other domestic
source of GHGs if compared to global GHG emissions.
Essentially, the EA tells the reader that the Mine Expansion
will add more fuel to the fire but its contribution will be
smaller than the worldwide total of all other sources of
GHGs. The reader is left to guess how or why the GHG
emissions from the Mine Expansion represent an insignificant
contribution to the environmental consequences identified in
the EA.16

The lack of a science-based standard for significance is
critical because the record before us reflects no dispute that
GHGs cause global warming and have had dramatic effects
on the environment. The only question is the extent to which
this particular project’s GHGs will add to the severe impacts
of climate change. It is worth repeating that the parties do not
dispute the Mine is anticipated to generate more GHGs
annually than the “largest single point source of GHG
emissions in the United States.” When asked at oral
argument, Interior did not dispute that if a project of this scale
can be found to have no significant impact, virtually every
domestic source of GHGs may be deemed to have no
significant impact as long as it is measured against total
global emissions. Cf. Sw. Elec. Power Co. v. E.P.A.,
920 F.3d 999, 1032 (5th Cir. 2019) (observing, in a Clean

16
See Kevin M. Stack & Michael P. Vandenbergh, The One Percent
Problem, 111 COLUM. L. REV. 1385, 1388 (2011) (“With regard to climate
change, it is natural to frame the problem in global terms; it is a global
problem. But once it is framed that way, the size of the denominator—all
activities that produce [GHGs], viewed globally—is staggering, and this
framing makes almost any source of emissions, including entire industrial
sectors within a given country, or even entire countries,” appear
negligible.).
24 350 MONTANA V. HAALAND

Water Act case, that a pollutant “may form a ‘very small
portion’ of a gargantuan source of water pollution” while still
“constitut[ing] a gargantuan source of water pollution on its
own terms”).

Plaintiffs argue that our opinion in Center for Biological
Diversity requires reversal of Interior’s FONSI determination.
In Center for Biological Diversity, a group of states and
public interest organizations petitioned for review of a final
rule promulgated by the National Highway Traffic Safety
Administration (NHTSA). 538 F.3d at 1180. The EA in that
case catalogued the total tonnage of CO2 emissions that would
result from its final rule and compared that number to the
total GHG emissions generated in the United States to
forecast that the rule would “result in cumulative reductions
. . . ranging from 0.2 to 0.3 percent of U.S. greenhouse gas
emissions.” Id. at 1215–16. Petitioners challenged the rule
pursuant to the Energy Policy and Conservation Act of 1975
(EPCA) and NEPA, arguing that NHTSA’s EA violated
NEPA because it “fail[ed] to take a ‘hard look’ at the
greenhouse gas implications of its rulemaking and fail[ed] to
analyze a reasonable range of alternatives or examine the
rule’s cumulative impact.” Id. at 1181.

In Center for Biological Diversity, we agreed that the
final rule failed to satisfy NEPA’s “hard look” and
“convincing statement of reasons” requirements. Id. at
1181–82, 1220–21. Though the agency determined the
projected 0.2 percent decrease in the rate of GHG emissions
would not have a significant impact on the environment,
petitioners had argued that other fuel-economy standards
would have yielded a significantly greater reduction in GHG
emissions and NHTSA’s conclusion was “unaccompanied by
 350 MONTANA V. HAALAND 25

any analysis or supporting data[.]”17 Id. at 1216–17, 1223.
On that record, we concluded the EA did not “provide a
‘statement of reasons’ for a finding of no significant impact,
much less a ‘convincing statement of reasons.’” Id. at 1223.
Thus, we ordered NHTSA to prepare a revised EA or, as
necessary, a complete EIS. Id. at 1227. Plaintiffs rely
heavily on Center for Biological Diversity to argue that the
global and domestic comparisons supporting the 2018 EA
must be rejected because they are not backed by the “best
available science.”

Interior counters that our opinion in Barnes, 655 F.3d
at 1139, requires the conclusion that the FONSI in this case
was adequately supported. In Barnes, the Federal Aviation
Administration prepared an EA and FONSI concerning a
proposal to construct a new runway at Hillsboro Airport in
Oregon. 655 F.3d at 1126. Relevant here, the FAA’s EA
estimated that “global aircraft emissions account for about
3.5 percent of the total quantity of greenhouse gas from
human activities and that U.S. aviation accounts for about
3 percent of total U.S. [greenhouse] gas emissions from
human sources.” Id. at 1140. Because the Hillsboro Airport
“represent[ed] less than 1 percent of U.S. aviation activity,”
the EA estimated that GHG emissions from existing and
future aviation activity at the airport would “represent less
than 0.03 percent of U.S.-based greenhouse gases.” Id.

Interior calls our attention to Barnes because that case
recognized that the effect of greenhouse gases on climate is

17
See Opening Brief of Pub. Int. Petitioners on Nat’l Env’t Pol’y Act
Issue, Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety
Admin., 538 F.3d 1172 (9th Cir. 2008) (Nos. 06-71891, 06-72317, 06-
72641, 06-72694, 06-73807, 06-73826), 2006 WL 3884218.
26 350 MONTANA V. HAALAND

a global problem, and we upheld the agency’s FONSI
determination even though part of the FAA’s analysis
included a comparison of the project’s expected emissions
against global and domestic GHG emissions. Id. But Barnes
is easily distinguished. The project at issue in that case was
expected to reduce airport congestion and delay, thereby
reducing aircraft ground idle emissions, and the net result was
expected to be “long-term, ongoing emission reductions.” Id.
at 1130 (emphasis added). The Mine Expansion represents a
far greater percentage of U.S.-based GHG emissions than the
Hillsboro Airport expansion, and in contrast to the proposal
in Barnes, which represented a reduction in an existing
airport’s GHG emissions, the Mine Expansion
unquestionably represents an overall increase in GHG
emissions. Our approval of the FONSI in Barnes cannot be
stretched to excuse the lack of support for the EA in this case.
See id. at 1140–41 (recognizing that its ruling “creat[ed] no
binding precedent” because “EAs are usually highly specific
to the project and the locale”).

The 2018 EA’s domestic comparisons also failed to
provide a convincing rationale in support of the FONSI, and
fell short of NEPA’s requirement that environmental
information be made available to citizens before decisions are
made,18 because the U.S.- and Montana-based comparisons
do not account for emissions generated by combustion of the
project’s coal. The district court cited the EA’s domestic
comparisons, 350 Montana, 443 F. Supp. 3d at 1198–99, but
did not specifically discuss that those calculations only
include the emissions generated by mining the coal and
transporting it to Vancouver, where it is shipped overseas. As
the EA explains, 97 percent of GHGs from the project will

18
40 C.F.R. § 1500.1(b).
 350 MONTANA V. HAALAND 27

result from coal combustion, primarily in Japan and the
Republic of Korea.

The failure to account for combustion-related emissions
in the domestic comparisons cannot be explained as an
attempt to measure the Mine Expansion’s local impact
because there is no question that the coal from the Mine
Expansion is intended to be sold for combustion.19 The
omission of combustion-related emissions also contradicts a
key premise of the 2018 EA—that climate change is a global
problem. None of the parties argue that the fact the coal will
be burned overseas minimizes the significance of the
resulting GHGs. Yet when asked at oral argument about the
failure to account for combustion-related emissions, counsel
demurred. Put simply, there is no cogent rationale that
justifies excluding combustion-related emissions from the
2018 EA’s domestic comparisons. The starting point of the
agency’s analysis was its recognition that GHGs are a global
problem. It follows that any meaningful measure of a local
point source’s contribution to global GHGs cannot exclude
combustion-related emissions, regardless of where the coal is
burned.20

19
The partial dissent responds by speculating that Japanese and South
Korean purchasers may stockpile coal rather than burning it. But there is
no indication of this in the record, and neither of the parties engage in
similar speculation.
20
Only the partial dissent suggests that the agency need not concern
itself with the environmental consequences caused by burning the
project’s coal overseas. The EA frankly acknowledges that climate
change is a global problem and that “[t]he magnitude of climate change
beyond the next few decades will depend primarily on the amount of
GHGs (especially CO2) emitted globally.” See supra note 6.
28 350 MONTANA V. HAALAND

Notably, Interior’s domestic comparisons in the 2015 EA
did include combustion-related emissions. The 2015 EA
“compar[ed] the estimated yearly amount of greenhouse gas
emission from the Mine (23.16 million metric tons) to the
total [annual] amount of greenhouse gas emissions in the
United States (6,526 million metric tons in 2012)[.]” Mont.
Env’t Info. Ctr., 274 F. Supp. 3d at 1094–95. The
23.16 million metric tons of GHGs included 22.3 million
metric tons (approximately 96.3 percent) of GHGs
attributable to the combustion of shipped coal. Interior offers
no explanation for why, after the district court ordered it to
provide more context than it presented in the 2015 EA, see id.
at 1101–02, it backpedaled and omitted combustion-related
emissions in the 2018 EA.

The EA’s U.S.- and Montana-based comparisons change
dramatically if they are modified to account for combustion
of the Mine Expansion’s coal. The estimate of the project’s
domestic emissions jumps from .04 percent of annual U.S.-
based GHG emissions to approximately 3.33 percent if
combustion-generated emissions are included. And the
calculation jumps from 6.43 percent of Montana’s annual
GHG emissions to 519 percent of Montana’s annual GHG
emissions if combustion-related GHG emissions are
included.21 We do not specify a particular format for

21
Plaintiffs argue the project’s GHG emissions would be more than
six times the annual Montana emissions, but they do not detail how they
calculated that estimate and it appears to be somewhat high. Below, we
show the same comparisons Interior used in the 2018 EA, but account for
GHG emissions generated by combustion of the project’s coal. The Mine
Expansion represents approximately 9 years of the 11.5 year project, but
the figures below are based on 11.5 years of operation, in keeping with
Interior’s calculation.
 350 MONTANA V. HAALAND 29

disclosing the projected impact of the project, but a more
complete comparison of the Mine Expansion’s GHG
emissions against U.S.- and Montana-based emissions would
go a long way toward contextualizing the significance of the
project’s environmental consequences, as required by NEPA.
40 C.F.R. § 1508.27 (“[T]he significance of an action must be
analyzed in several contexts such as society as a whole
(human, national), the affected region, the affected interests,
and the locality.”). For example, the 2018 EA did not explain
to the public that every year the Mine Expansion is in
operation, Montana’s annual GHG emissions are expected to
be about 45 percent greater than that state’s projected 2020
emissions.22

Our conclusion that the 2018 EA failed to provide a
convincing statement of reasons to explain why the Mine
Expansion’s impacts are insignificant begins with Interior’s

54,000 = annual global Mt-CO2e.

7,261 = annual US Mt-CO2e.

46.3 = annual Montana Mt-CO2e (2020 projection).

240.1 = total Mine expansion emissions over the life of the project.

240.1 / 11.5 = 20.9 Mt-CO2e = approximate average annual Mine
emissions

240.1 / 7,261 = .033 = 3.33%

240.1 / 46.3 = 5.19 = 519%
22
Interior’s analysis used 2020 as the base year for comparing
Montana’s GHG emissions.

20.9 / 46.3 = 0.45 = 45%
30 350 MONTANA V. HAALAND

own uncontested summary of the scientific evidence
concerning the cause and effects of climate change. The EA
describes the consequences of climate change as “profound,”
and explains researchers’ broad consensus that “the
magnitude of climate change beyond the next few decades
will depend primarily on the amount of GHGs (especially
CO2) emitted globally.” The only question is the extent of
this project’s contribution to the problem. See
42 U.S.C. § 4332(C); 40 C.F.R. § 1508.13; 40 C.F.R.
§ 1508.27 (“‘Significantly’ as used in NEPA requires
considerations of . . . intensity,” and intensity “refers to the
severity of impact.”).23 By relying on an opaque comparison
to total global emissions and failing to account for
combustion-related emissions in its domestic calculations, the
2018 EA hid the ball and frustrated NEPA’s purpose. See
League of Wilderness Defs./Blue Mountains Biodiversity
Project, 752 F.3d at 761 (“Informed public participation in
reviewing environmental impacts is essential to the proper
functioning of NEPA.”). Interior’s FONSI does not measure
up to the “high quality” and “[a]ccurate scientific analysis”
that NEPA’s implementing regulations demand of
environmental information produced by agencies. 40 C.F.R.
§ 1500.1.

Beginning in its first paragraph, the partial dissent
attributes findings to the agency that it did not make,24 sets up

23
Title 40 of the Code of Federal Regulations has since been
amended. See 85 Fed. Reg. 43,304, 43,357–76 (July 16, 2020) (amending
40 C.F.R. Parts 1500 et seq.). We cite to the regulations in force at the
time Interior published the 2018 EA.
24
The partial dissent asserts the agency found “that the incremental
effects of 0.04% of annual global greenhouse gas [] emissions were
‘minor.’” But the agency made no such finding. Rather, the agency’s
 350 MONTANA V. HAALAND 31

a series of straw man arguments, and curiously and
persistently attributes to this opinion the agency’s
quantification of GHGs, even asserting that “the majority
overstates the actual impact of the project more than ten-
fold[.]” The suggestion that plaintiffs barely challenged the
agency’s conclusion that the project’s environmental effects
would be “minor” is refuted by plaintiffs’ arguments,
excerpted in this opinion. Our opinion relies on the three
metrics the agency used in its EA—and the agency did indeed
compare the GHGs emitted over the course of the project to
one year of total annual GHG emissions and concluded,
without analysis or elaboration, that the project’s
contributions would be “minor.” The partial dissent’s
concern that these are “apples to oranges” comparisons
cannot be correctly aimed at the majority. Further, it was the
agency, not the panel majority, that omitted from the 2018
EA any consideration of combustion-related GHGs from the
domestic calculation of the project’s GHGs. This omission
is particularly glaring because the agency included the GHGs
generated by burning the coal in its 2015 EA domestic
calculations and then stripped the GHGs generated from
combustion of the coal out of the 2018 EA’s domestic
calculations.

At oral argument, the agency did not deny that every
domestic project, viewed individually, will generate GHGs
that can be described as “minor” when compared to global

2018 EA found that “total direct and indirect emissions resulting from
mining over 11.5 years would be approximately 0.44 percent of annual
(single year) global GHG emissions (2010). Therefore, while the
Proposed Action would contribute to the effects of climate change, its
contribution relative to other global sources would be minor in the short-
and long-term on an annual basis.”
32 350 MONTANA V. HAALAND

GHG emissions. And if domestic measures of this admittedly
global problem omit the GHGs generated by burning the coal
overseas, the calculations provide the public no indication at
all of the project’s contributions to the threat presented by
global warming.

V

Plaintiffs also argue that Interior arbitrarily and
capriciously failed to use the Social Cost of Carbon metric to
quantify the environmental harms that may result from the
project’s GHG emissions. The SCC is “a method of
quantifying the impacts of GHGs” that estimates the harm, in
dollars, caused by each incremental ton of carbon dioxide
emitted into the atmosphere in a given year. The SCC was
developed in 2010 by the Interagency Working Group on the
Social Cost of Carbon (IWG), which consisted of experts
from various federal agencies, including Interior.

Plaintiffs strenuously argue that the SCC is “[r]ooted in
extensive, peer-reviewed scientific literature” and has been
widely accepted by scientists, agencies, and courts alike. See,
e.g., Zero Zone, Inc. v. U.S. Dep’t of Energy, 832 F.3d 654,
660–61, 677–78 (7th Cir. 2016) (approving the Department
of Energy’s use of the Social Cost of Carbon when
considering environmental impacts of two final rules aimed
at improving the energy efficiency of commercial
refrigeration equipment); High Country Conservation Advocs.
v. U.S. Forest Serv., 52 F. Supp. 3d 1174, 1189–93 (D. Colo.
2014) (rejecting Forest Service’s contention that there is no
method to predict the impact of one project’s GHG emissions
on climate change because “a tool is and was available: the
social cost of carbon protocol”). Another agency within the
Department of Interior, the Bureau of Reclamation, explained
 350 MONTANA V. HAALAND 33

in a draft EIS that “SCC estimates provide valuable and
critical insights for decision[] makers and the public as they
consider the costs and benefits of alternative policy choices
. . . .”25

Interior did not use the SCC in its 2015 EA, and plaintiffs
argued in the district court that the decision was arbitrary and
capricious. The court was persuaded by plaintiffs’ argument
and concluded that Interior’s analysis weighed the economic
benefits of the Mine Expansion but failed to use the SCC to
quantify the resulting environmental harms. When Interior
again declined to employ the SCC in the 2018 EA, it pointed
to four reasons:

1) [Interior] is not engaged in a rulemaking
for which the [SCC] protocol was originally
developed; 2) the [Interagency Working
Group on Social Cost of Greenhouse Gases],
technical supporting documents, and
associated guidance have been withdrawn;
3) NEPA does not require cost-benefit
analysis; and 4) the full social benefits of
coal-fired energy production have not been
monetized, and quantifying only the costs of
GHG emissions for the project but not other
costs and benefits would yield information
that is both potentially inaccurate and not
useful.

25
BUREAU OF RECLAMATION, DRAFT ENVIRONMENTAL
IMPACT STATEMENT: NAVAJO GENERATING STATION-KAYENTA
M I N E C O M P L E X P R O J E C T a t § 3 . 2 . 1 ( S e p t . 20 1 6) ,
https://www.usbr.gov/ngs/docs/NGS-KMC-DEIS-Text.pdf.
34 350 MONTANA V. HAALAND

Interior’s primary explanation for declining to use the
SCC was that the method is too uncertain to provide a benefit
because it produces a wide range of values to quantify the
environmental impacts of incremental GHG emissions. But
it also stressed that the SCC was developed for rule-making.
The district court ruled that Interior adequately explained its
decision not to use the SCC and rejected plaintiffs’ argument
that Interior arbitrarily and capriciously declined to employ
the methodology.

On appeal to our court, plaintiffs argue the district court
erred because even the lowest value in the range of estimates
generated by the SCC indicates that the environmental
damages caused by the Mine Expansion’s GHG emissions
will significantly exceed the total value of the coal, including
all economic benefits.26 Plaintiffs also strenuously argue that
the SCC analysis applies with equal force—and produces
equally valid results—to project-level agency decisions as it
does to rulemaking proceedings. But plaintiffs’ arguments
overlook that prescribing a specific metric for the agency to
use on remand is not our role. See Friends of Endangered
Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985).
“NEPA does not require that we decide whether an [EA] is
based on the best scientific methodology available, nor does
NEPA require us to resolve disagreements among various
scientists as to methodology.” Id.; The Lands Council v.
McNair, 537 F.3d 981, 1003 (9th Cir. 2008) (en banc).

What NEPA does require is that agencies provide “high
quality” information and “[a]ccurate scientific analysis.”
40 C.F.R. § 1500.1. For the reasons explained, the global and

26
The SCC produces a range of values depending on the year of the
emissions and the discount rate used.
 350 MONTANA V. HAALAND 35

domestic comparisons employed in the 2018 EA fall short of
that mark. The 2018 EA asserts, without citation or
explanation, that incremental effects of climate change
“cannot be attributed to anyone [sic] source at a small scale.”
But NEPA requires that agencies ask a broader question and
consider the direct, indirect, and cumulative effects of
proposed agency action. See Barnes, 655 F.3d at 1136, 1141;
40 C.F.R. §§ 1508.7–8. Interior does not cite any authority
in support of its implied proposition that an agency may
decline to consider evidence relevant to indirect and
cumulative impacts simply because it cannot precisely
identify direct effects.

As far as we can tell, Interior resorted to a global
comparison of the Mine Expansion’s GHG emissions because
it could not define, with precision, the incremental impacts of
this project’s emissions. Interior suggests that it could do no
better, but the authorities cited in the 2018 EA make plain
that the scientific community’s understanding has advanced
considerably since we decided Barnes in 2011.27 We are not
persuaded by plaintiff’s argument that Interior was required
to use the SCC, but Interior must use some methodology that
satisfies NEPA and the APA. At a minimum, this approach
requires providing the information that is known, and the

27
The agency hedged on its implied assertion that, if the SCC is not
used, no other metrics were available. Interior refers to the
Intergovernmental Panel on Climate Change (IPCC) as “the leading
international body for the assessment of climate change.” The 2018 EA
heavily relied upon the fifth edition of the IPCC’s report. We note that the
IPCC’s recently published sixth edition assessment report integrates and
synthesizes scientific, technical, and socioeconomic studies relevant to
understanding the causes and effects of climate change. See
INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE
2021: The Physical Science Basis (2021).
36 350 MONTANA V. HAALAND

2018 EA provided less detail than the 2015 EA. The Mine
Expansion will emit millions of tons of GHGs into the
atmosphere, and the bare comparisons employed in the 2018
EA are of almost no utility in the absence of additional
information concerning the Mine Expansion’s scale and
scope relative to the industry and commodity. Ctr. for
Biological Diversity, 538 F.3d at 1223–25.

VI

Plaintiffs urge us to vacate Interior’s approval of the Mine
Expansion and direct Interior to prepare an EIS.
“[P]reparation of an EIS is not mandated in all cases simply
because an agency has prepared a deficient EA or otherwise
failed to comply with NEPA,” id. at 1225, but “[p]reparation
of an EIS is mandated where uncertainty may be resolved by
further collection of data, or where the collection of such data
may prevent speculation on potential effects,” Native
Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233,
1240 (9th Cir. 2005) (internal quotation marks and alteration
omitted) (quoting Nat’l Parks & Conservation Ass’n v.
Babbitt, 241 F.3d 722, 731–32 (9th Cir. 2001), abrogation on
other grounds recognized by Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 157–58 (2010)).

Plaintiffs are correct that vacatur is the presumptive
remedy under the APA, Alliance for the Wild Rockies v.
United States Forest Service, 907 F.3d 1105, 1121–22 (9th
Cir. 2018), and “[w]e order remand without vacatur only in
‘limited circumstances,’” Pollinator Stewardship Council v.
U.S. Environmental Protection Agency, 806 F.3d 520, 532
(9th Cir. 2015) (quoting Cal. Cmties. Against Toxics v. EPA,
688 F.3d 989, 994 (9th Cir. 2012)). “Whether agency action
should be vacated depends on how serious the agency’s errors
 350 MONTANA V. HAALAND 37

are and the disruptive consequences of an interim change that
may itself be changed.” Nat’l Family Farm Coal. v. E.P.A.,
966 F.3d 893, 929 (9th Cir. 2020) (quoting Cal. Cmties.,
688 F.3d at 992).

Plaintiffs strenuously argue that permitting the Mine
Expansion to go forward while Interior prepares a new,
NEPA-compliant EA or EIS will “frustrate NEPA’s purpose
of requiring agencies to look before they leap.” See
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
349 (1989) (“NEPA ensures that important effects will not be
overlooked or underestimated only to be discovered after
resources have been committed or the die otherwise cast.”).

Plaintiffs’ argument is well taken, but the record is
unclear about the extent to which the agency is capable of
resolving uncertainty regarding the magnitude of the project’s
contribution to the environmental harms identified in the EA.
Further, there is a dearth of evidence concerning the impact
of vacatur, including whether Signal Peak is currently mining
federal coal or state coal. See Cal. Cmties. Against Toxics,
688 F.3d at 993–94 (considering environmental, economic,
and energy-related consequences of vacatur). Additional
factfinding is necessary to determine whether preparation of
an EIS and vacatur of the plan approval is warranted at this
juncture. See id. We are mindful of the need for prompt
reconsideration of the plan’s approval but must remand to the
district court to make that determination as expeditiously as
possible.28

28
There is no merit to the partial dissent’s contention that this opinion
requires the agency to make up new science, and contrary to its concern
that we ought to remand to the agency, we have repeatedly remanded to
the district court to determine whether preparation of an EIS is
38 350 MONTANA V. HAALAND

The district court’s order is AFFIRMED IN PART,
REVERSED IN PART, and the case is REMANDED to the
district court for further proceedings consistent with this
opinion.

appropriate. See, e.g., W. Watersheds Project v. Abbey, 719 F.3d 1035,
1054 (9th Cir. 2013); Ocean Advocs. v. U.S. Army Corps of Engineers,
402 F.3d 846, 875 (9th Cir. 2005); Nat. Res. Def. Council v. U.S. Forest
Serv., 421 F.3d 797, 816, 816 n.29 (9th Cir. 2005). Here, it is not clear
whether an EIS would resolve uncertainty. But even if we could decide
on this record that an EIS is required, remand would be necessary because
there are no findings concerning the consequences that would follow from
vacatur.
350 MONTANA V. HAALAND 39

APPENDIX
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Appendix D – Climate Change

APPENDIX D - CLIMATE CHANGE
This appendix provides additional information related to climate change to supplement
descriptions of the existing condition (recent conditions and trends) in Section 3.3 and
provides global, national, and regional context (projections) to support impact analysis in
Section 4.3.

1.0 Recent Conditions and Trends

As the leading international body for the assessment of climate change, IPCC reviews and
assesses the most recent scientific, technical and socio-economic information produced
worldwide relevant to the understanding of climate change. IPCC’s fifth assessment report
(IPCC 2014) presents details pertaining to observed climate changes and their causes; future
climate changes, risks and impacts; future pathways for adaptation, mitigation and sustainable
development; and adaptation and mitigation.

IPCC (2014) findings related to recent global conditions and trends include the following.

x Each of the last three decades has been successively warmer at the Earth’s surface than
any preceding decade since 1850. The period from 1983 to 2012 was likely the warmest
30-year period of the last 1400 years in the Northern Hemisphere, where such
assessment is possible.
x The globally averaged combined land and ocean surface temperature data as calculated
by a linear trend show a warming of 0.85 [0.65 to 1.06] °C 2 over the period 1880 to
2012, when multiple independently produced datasets exist. It is extremely likely that
more than half of the observed increase in global average surface temperature from
1951 to 2010 was caused by the anthropogenic increase in GHG concentrations and
other anthropogenic factors together.
x In recent decades, changes in climate have caused impacts on natural and human
systems on all continents and across the oceans. Impacts are due to observed climate
change, irrespective of its cause, indicating the sensitivity of natural and human systems
to changing climate.
x Changes in many extreme weather and climate events have been observed since about
1950. Some of these changes have been linked to human influences, including a decrease
in cold temperature extremes, an increase in warm temperature extremes, an increase
in extreme high sea levels and an increase in the number of heavy precipitation events in
a number of regions.
x In many regions, changing precipitation or melting snow and ice are altering hydrological
systems, affecting water resources in terms of quantity and quality.
x Many terrestrial, freshwater and marine species have shifted their geographic ranges,
seasonal activities, migration patterns, abundances and species interactions in response
to ongoing climate change.
x Studies covering a wide range of regions and crops show that negative impacts of
climate change on crop yields have been more common than positive impacts.

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x Cascading impacts of climate change can now be attributed along chains of evidence
from physical climate through to intermediate systems and then to people.
x At present the worldwide burden of human ill-health from climate change is relatively
small compared with effects of other stressors and is not well quantified.

As a key part of the Fourth National Climate Assessment, the US Global Change Research
Program (USGCRP) oversaw production of a report describing the state of science relating to
climate change and its physical impacts. USGCRP (2017) concluded that the climate of the US is
strongly connected to the changing global climate and provided the following statements
highlighting past and recent conditions related to climate change in the US and the globe.

x Global annually averaged surface air temperature has increased by about 1.8°F (1.0°C)
over the last 115 years (1901–2016). This period is now the warmest in the history of
modern civilization. The last few years have also seen record-breaking, climate-related
weather extremes, and the last three years have been the warmest years on record for
the globe. These trends are expected to continue over climate timescales.
x Based on extensive evidence, it is extremely likely that human activities, especially
emissions of GHGs, are the dominant cause of the observed warming since the mid-
20th century. For the warming over the last century, there is no convincing alternative
explanation supported by the extent of the observational evidence.
x In addition to warming, many other aspects of global climate are changing, primarily in
response to human activities. Thousands of studies conducted by researchers around
the world have documented changes in surface, atmospheric, and oceanic temperatures;
melting glaciers; diminishing snow cover; shrinking sea ice; rising sea levels; ocean
acidification; and increasing atmospheric water vapor.
o For example, global average sea level has risen by about 7–8 inches since 1900,
with almost half (about 3 inches) of that rise occurring since 1993. Human-
caused climate change has made a substantial contribution to this rise since 1900,
contributing to a rate of rise that is greater than during any preceding century in
at least 2,800 years. Global sea level rise has already affected the US; the
incidence of daily tidal flooding is accelerating in more than 25 Atlantic and Gulf
Coast cities.
x Changes in the characteristics of extreme events are particularly important for human
safety, infrastructure, agriculture, water quality and quantity, and natural ecosystems.
Heavy rainfall is increasing in intensity and frequency across the US and globally and is
expected to continue to increase. The largest observed changes in the US have
occurred in the Northeast.
x Heatwaves have become more frequent in the US since the 1960s, while extreme cold
temperatures and cold waves are less frequent. Recent record-setting hot years are
projected to become common in the near future for the US, as annual average
temperatures continue to rise. Annual average temperature over the contiguous US has
increased by 1.8°F (1.0°C) for the period 1901–2016.
x The incidence of large forest fires in the western US and Alaska has increased since the
early 1980s and is projected to further increase in those regions as the climate changes,
with profound changes to regional ecosystems.

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x Annual trends toward earlier spring melt and reduced snowpack are already affecting
water resources in the western US and these trends are expected to continue.
x The global atmospheric carbon dioxide (CO 2 ) concentration has now passed 400 parts
per million (ppm), a level that last occurred about 3 million years ago, when both global
average temperature and sea level were significantly higher than today.
x The observed increase in carbon emissions over the past 15-20 years has been
consistent with higher emissions pathways. In 2014 and 2015, emission growth rates
slowed as economic growth became less carbon-intensive. Even if this slowing trend
continues, however, it is not yet at a rate that would limit global average temperature
change to well below 3.6°F (2°C) above preindustrial levels.

The Montana Climate Assessment (Whitlock et al. 2017) identified the following key messages
about recent trends related to regional climate change in Montana.

x Annual average temperatures, including daily minimums, maximums, and averages, have
risen across Montana between 1950 and 2015. The increases range between 2.0-3.0°F
(1.1-1.7°C) during this period.
x Winter and spring in Montana have experienced the most warming. Average
temperatures during these seasons have risen by 3.9°F (2.2°C) between 1950 and 2015.
x Montana’s growing season length is increasing due to the earlier onset of spring and
more extended summers, and there are more warm days and fewer cool nights. From
1951-2010, the growing season increased by 12 days. In addition, the annual number of
warm days has increased by 2.0 percent, and the annual number of cool nights has
decreased by 4.6 percent over this period.
x Despite no historical changes in average annual precipitation between 1950 and 2015,
there have been changes in average seasonal precipitation over the same period.
Average winter precipitation has decreased by 0.9 inches (2.3 cm), which can mostly be
attributed to natural variability and an increase in El Niño events, especially in the
western and central parts of the state. A significant increase in spring precipitation (1.3-
2.0 inches [3.3-5.1 cm]) has also occurred during this period for the eastern portion of
the state.

The Montana Climate Assessment (Whitlock et al. 2017) also provided findings related climate
change to effects on water, forests, and agriculture, which have been and will continue to be
affected by changes in climate.

2.0 Projected Climate Conditions and Effects

The most recent findings and predictions about climate change and its effects are presented in
IPCC’s report titled Climate Change 2014: Synthesis Report, the Fourth National Climate
Assessment (USGCRP 2017), and Montana Climate Assessment (Whitlock et al 2017). Recent
conditions and trends discussed in Section 1 are expected to continue. Projected effects of
climate change are discussed in each of these documents at varying scales covering a variety of

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topics and resources as summarized below in Section 2.1 to 2.3. In support of Section 4.3.2
of the EA, a detailed discussion of the SCC protocol is provided in Section 2.4

2.1 Global Projections
Projected global climate conditions and effects identified by IPCC (2014) include the following.

x Cumulative emissions of CO 2 largely determine global mean surface warming by the late
21st century and beyond. Projections of GHG emissions vary over a wide range,
depending on both socio-economic development and climate policy.
x Continued emission of GHGs will cause further warming and long-lasting changes in all
components of the climate system, increasing the likelihood of severe, pervasive, and
irreversible impacts for people and ecosystems.
x Surface temperature is projected to rise over the 21st century under all assessed
emission scenarios. It is very likely that heat waves will occur more often and last
longer, and that extreme precipitation events will become more intense and frequent in
many regions. The ocean will continue to warm and acidify, and global mean sea level to
rise.
x Climate change will amplify existing risks and create new risks for natural and human
systems. Risks are unevenly distributed and are generally greater for disadvantaged
people and communities in countries at all levels of development. Increasing magnitudes
of warming increase the likelihood of severe, pervasive and irreversible impacts for
people, species and ecosystems. Continued high emissions (globally) would lead to
mostly negative impacts for biodiversity, ecosystem services and economic development
and amplify risks for livelihoods and for food and human security.
x Many aspects of climate change and its associated impacts will continue for centuries,
even if anthropogenic emissions of GHGs are stopped. The risks of abrupt or
irreversible changes increase as the magnitude of the warming increases.

2.2 National Projections
The Fourth National Climate Assessment (USGCRP 2017) projects changes in temperature and
precipitation, increased frequency of droughts, floods, wildfires, and extreme storms, changes in
land cover and terrestrial biogeochemistry, changes in arctic conditions, sea level rise, and
ocean acidification (and other ocean changes). EPA (2016a) identifies potential subsequent
effects to health and society and ecosystems such as heat-related deaths and illness, disease
spread, changes in growing seasons. Examples of projected effects identified by USGCRP (2017)
include the following.

x Over the next few decades (2021–2050), annual average temperatures are expected to
rise by about 2.5°F for the US, relative to the recent past (average from 1976-2005),
under all plausible future climate scenarios.
x Global average sea levels are expected to continue to rise by at least several inches in
the next 15 years and by 1 to 4 feet by 2100. A rise of as much as 8 feet by 2100 cannot
be ruled out. Sea level rise will be higher than the global average on the East and Gulf
Coasts of the US.

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x The magnitude of climate change beyond the next few decades will depend primarily on
the amount of GHGs (especially CO 2 ) emitted globally. Without major reductions in
emissions, the increase in annual average global temperature relative to preindustrial
times could reach 9°F (5°C) or more by the end of this century. With significant
reductions in emissions, the increase in annual average global temperature could be
limited to 3.6°F (2°C) or less.
x Under higher scenarios, and assuming no change to current water resources
management, chronic, long-duration hydrological drought is increasingly possible before
the end of this century.
x Continued growth in CO 2 emissions over this century and beyond would lead to an
atmospheric concentration not experienced in tens to hundreds of millions of years.
There is broad consensus that the further and the faster the Earth system is pushed
towards warming, the greater the risk of unanticipated changes and impacts, some of
which are potentially large and irreversible.

2.3 Montana Projections
Key projections (effects) identified in the Montana Climate Assessment (Whitlock et al. 2017)
include the following.

x The state of Montana is projected to continue to warm in all geographic locations,
seasons, and under all emission scenarios throughout the 21st century. By mid-century,
Montana temperatures are projected to increase by approximately 4.5-6.0°F (2.5-3.3°C)
depending on the emission scenario. By the end-of-century, Montana temperatures are
projected to increase 5.6- 9.8°F (3.1-5.4°C) depending on the emission scenario. These
state-level changes are larger than the average changes projected globally and nationally.
x The number of days in a year when daily temperature exceeds 90°F (32°C) and the
number of frost-free days is expected to increase across the state and in both emission
scenarios studied. Increases in the number of days above 90°F (32°C) are expected to
be greatest in the eastern part of the state. Increases in the number of frost-free days
are expected to be greatest in the western part of the state.
x Across the state, precipitation is projected to increase in winter, spring, and fall;
precipitation is projected to decrease in summer. The largest increases are expected to
occur during spring in the southern part of the state. The largest decreases are
expected to occur during summer in the central and southern parts of the state.
x Hydrologic impacts may include reduced snowpack; changes in runoff timing,
streamflows and resultant water availability; and increased drought severity and
duration.
x Forest impacts may include: variable impacts to forest-wide processes, but negative
effects of extreme heat; increased forest mortality and net loss of forested areas;
altered forest disturbance regimes; increase in fire risk; increase in bark beetle survival;
and reduction in the amount of carbon stored in forests.
x Agricultural impacts may include both favorable and disruptive effects on crop and
forage; production; less reliable irrigation water; changes to commodity prices; increases

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in native plains vegetation, but declines in forage quality; and an overall increase in the
need for innovation and adaptation to address climate change effects.

2.4 Social Cost of Carbon
A protocol to estimate what is referenced as the “social cost of carbon” (SCC) associated with
GHG emissions was developed by a IWG, to assist agencies in addressing EO 12866, which
requires Federal agencies to assess the domestic costs and the benefits of proposed regulations
as part of their regulatory impact analyses. The SCC is an estimate of the economic damages
associated with an increase in carbon dioxide emissions internationally and is intended to be
used as part of a cost-benefit analysis for proposed rules. As explained in the Executive
Summary of the 2010 SCC Technical Support Document “the purpose of the [SCC]
estimates…is to allow agencies to incorporate the social benefits of reducing carbon dioxide
(CO 2 ) emissions into cost-benefit analyses of regulatory actions that have small, or ‘marginal,’
impacts on cumulative global emissions.” Technical Support Document: Social Cost of Carbon
for Regulatory Impact Analysis under EO 12866 February 2010 (withdrawn by EO13783).
While the SCC protocol was created for regulatory impact analyses during rulemakings, there
have been requests by public commenters or project applicants to expand the use of SCC
estimates to project-level NEPA analyses. These requests are not appropriate for project-level
NEPA analyses for a number of reasons.

First, NEPA does not require a cost-benefit analysis (40 C.F.R. § 1502.23). NEPA requires
agencies to take a hard look at the environmental impacts of their actions. OSMRE completed
an analysis of the potential impacts under all applicable resource areas including air quality and
climate change. OSMRE calculated potential emissions (including greenhouse gases) from mining
operations, transportation, export, and coal combustion. This analysis contained quantitative or
detailed qualitative information. OSMRE evaluated the best available information and the
quantitative and or qualitative analyses provided a reasoned basis for making a choice among
alternatives.

Further, the decision not to expand the use of the SCC protocol for this EA is supported by
the fact that this action is not a rulemaking for which the SCC protocol was originally
developed. On March 28, 2017, the President issued EO 13783 which, among other actions,
withdrew the Technical Support Documents upon which the protocol was based and disbanded
the earlier Interagency Working Group on Social Cost of Greenhouse Gases. The Order
further directed agencies to ensure that estimates of the social cost of GHGs used in regulatory
analyses “are based on the best available science and economics” and are consistent with the
guidance contained in [Office of Management and Budget (OMB)] Circular A-4, “including with
respect to the consideration of domestic versus international impacts and the consideration of
appropriate discount rates” (E.O. 13783, Section 5(c)). In compliance with OMB Circular A-4,
interim protocols have been developed for use in the rulemaking context. However, the
Circular does not apply to project decisions, and there is no other requirement to apply the
SCC protocol to project decisions.

Although NEPA does require consideration of “effects” that include “economic” and “social”
effects (40 C.F.R. 1508.8(b)), without a complete monetary cost-benefit analysis, which would

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include the social benefits of the proposed action to society as a whole and other potential
costs and positive benefits, inclusion solely of an SCC cost analysis would be unbalanced,
potentially inaccurate, and not useful in facilitating an authorized officer’s decision. Any
increased economic activity, in terms of revenue, employment, labor income, total value added,
and output, that is expected to occur with the proposed action is simply an economic impact,
rather than an economic benefit, inasmuch as such impacts might be viewed by another person
as negative or undesirable impacts due to potential increase in local population, competition for
jobs, and concerns that changes in population will change the quality of the local community.
Economic impact is distinct from “economic benefit” as defined in economic theory and
methodology, and the socioeconomic impact analysis required under NEPA is distinct from
cost-benefit analysis, which is not required.

Finally, the SCC, protocol does not measure the actual incremental impacts at the project-level
on the environment and does not include all costs or benefits from carbon emissions. The SCC
protocol estimates economic damages associated with an increase in CO 2 emissions—typically
expressed as a one metric ton increase in a single year—and includes, but is not limited to,
potential changes in net agricultural productivity, human health, and property damages from
increased flood risk over hundreds of years. The estimate is developed by aggregating results
“across models, over time, across regions and impact categories, and across 150,000 scenarios”
(Rose et al. 2014). The dollar cost figure arrived at based on the SCC calculation represents the
value of damages avoided if, ultimately, there is no increase in carbon emissions. But the dollar
cost figure is generated in a range and provides little benefit in assisting the authorized officer’s
decision for project level analyses. For example, in a recent EIS, OSMRE estimated that the
selected alternative had a cumulative SCC ranging from approximately $4.2 billion to $22.1
billion depending on dollar value and the discount rate used. The cumulative SCC for the no
action alternative ranged from $2.0 billion to $10.7 billion. Given the uncertainties associated
with assigning a specific and accurate SCC resulting from 9 additional years of operation under
the mining plan modification, and that the SCC protocol and similar models were developed to
estimate impacts of regulations over long time frames, OSMRE’s ability to evaluate these
impacts on a project-level would be doubtful. 9 This EA does, nonetheless, quantify direct and
indirect GHG emissions and evaluate these emissions in the context of global emissions as
discussed in Section 4.3.1 of the EA.

9
This conclusion is supported in the February 2018 BLM Regulatory Impact Analysis for the Proposed Rule to Rescind or Revise
Certain Requirements of the 2016 Waste Prevention Rule (BLM 2018), noting that “[t]he scientific and economics literature has
further explored known sources of uncertainty related to estimates of the social cost of carbon and other greenhouse gases
noting further that researchers have examined the sensitivity of Integrated Assessment Models (IAMs) and the resulting
estimates to different assumptions embedded in the models (see, e.g., Pindyck 2013, Hope 2013, Anthoff and Tol 2013,
Nordhaus 2014, and Waldhoff et al. 2011, 2014). BLM further spoke to the “additional sources of uncertainty that have not
been fully characterized and explored due to remaining data limitations, concluding that” [a]dditional research is needed to
expand the quantification of various sources of uncertainty in estimates of the social cost of carbon and other greenhouse gases
(e.g., developing explicit probability distributions for more inputs pertaining to climate impacts and their valuation). On damage
functions, other experts have found that those used in most IAMs have no theoretical or empirical foundation, claiming that the
overall model is able to “obtain almost any result one desires” (Pindyck 2013). Naturally, the indeterminate amount of
uncertainty surrounding the IAMs used to approximate social costs for specific greenhouse gas emissions merits additional
research and analysis and further peer-review in order to better ascertain the best available science and economics in
accordance with E.O. 13783.” BLM’s discussion is in the context of a rulemaking for which the SCC was developed. The
uncertainties regarding the applicability of social cost of carbon by OSMRE in the context of a specific project is even greater.

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To summarize, this EA does not undertake an analysis of SCC because 1) it is not engaged in a
rulemaking for which the protocol was originally developed; 2) the IWG, technical supporting
documents, and associated guidance have been withdrawn; 3) NEPA does not require cost-
benefit analysis; and 4) the full social benefits of coal-fired energy production have not been
monetized, and quantifying only the costs of GHG emissions for the project but not other costs
and benefits would yield information that is both potentially inaccurate and not useful.

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40 350 MONTANA V. HAALAND

R. NELSON, Circuit Judge, dissenting:

The agency’s finding that the incremental effects of
0.04% of annual global greenhouse gas (“GHG”) emissions
were “minor” was not arbitrary or capricious under the
Administrative Procedure Act (“APA”). This argument was
barely raised, and the majority’s contrary holding is wrong
given our deferential APA review. I therefore respectfully
dissent.1

The environmental effects of GHG emissions have been
hotly contested publicly and in the courts, particularly in the
last three decades. Because neither political branch has
provided any specific direction on how to address the
environmental effects of GHG emissions, the courts are
forced to confront this global environmental issue with
outdated laws and regulations. The National Environmental
Policy Act (“NEPA”)—the relevant law here—was passed
over 50 years ago. And NEPA’s implementing regulations
were first adopted more than 40 years ago, long before the
current scientific debate over GHG emissions materialized.

The courts are ill-equipped to step into highly politicized
scientific debates like this, particularly with so little direction
from either the legislative or executive branch. Indeed, we
risk exceeding our own judicial authority in doing so. See
generally Juliana v. United States, 947 F.3d 1159 (9th Cir.
2020) (plaintiffs’ relief sought was not within the power of an
Article III court). Rather than properly deferring to the other
two branches of government—which have evaded the

1
I agree with the Majority’s Section III and the portions of Section V
that hold that the agency’s analysis of the Social Cost of Carbon was not
arbitrary or capricious.
 350 MONTANA V. HAALAND 41

specific issue before us—the majority now addresses this
global issue better left in the first instance to the political
branches, not the judicial branch.

As the majority notes, the Department of the Interior’s
Office of Surface Mining Reclamation and Enforcement
(“Interior”) has compiled a breathtaking record of the
potential environmental impacts of GHG emissions. That
follows NEPA’s direction to consider potential environmental
impacts. But as Interior explains, these potential
environmental impacts are based on global GHG emissions.
No scientific evidence identified by Interior, the Plaintiffs, or
the majority quantifies the incremental environmental effect
caused by GHG emissions of a single project. The best
potential evidence of incremental impact, the Social Cost of
Carbon (“SCC”), was rejected by Interior, and both a
skeptical district court and this panel unanimously have
affirmed that conclusion.

There is good reason for the courts to wade cautiously in
this area. As Interior noted, the science of climate change is
complex. So complex that the last several Administrations
have failed to provide a consistent way for agencies to
analyze the incremental effects of a single project’s GHG
emissions on climate change under NEPA. No other
environmental concern is so intertwined with assumptions of
the behavior of 200 other sovereign nations, the supply and
demand projections of global energy models, or the personal
energy usage decisions of 7 billion people worldwide. It
strains credibility to assume that such targeted issues can be
adequately analyzed under NEPA with any scientific
consensus.
42 350 MONTANA V. HAALAND

Can we really expect scientists to agree on how many
forest fires or other environmental harms in the proposed
action area can be allocated to a 0.04% increase in annual
global GHG emissions? Especially when scientists can
hardly project the global GHG emissions 10 years from now
with any similar accuracy? Yet the majority today demands
that Interior do just that—and evaluate or create a scientific
record that by all accounts does not yet exist. Interior
explained how this was a futile effort and the science does not
support such an analysis. We have consistently accorded
those agency findings deference. See, e.g., California ex rel.
Imperial Cnty. Air Pollution Control Dist. v. U.S. Dep’t of
Interior, 767 F.3d 781, 792 (9th Cir. 2014). And since there
is no evidence in the record that the science has evolved in
the last decade to adequately evaluate any significant
environmental impact from, at most, a 0.04% increase in
annual global GHG emissions, Interior was not arbitrary or
capricious in analyzing NEPA’s statutory and regulatory
requirements.

The majority errs by concluding that Interior must
compare the project’s GHG emissions to state and national
emissions and create science to show the incremental
environmental effect caused by 0.04% of annual global GHG
emissions. Yet GHG emissions from coal combustion from
foreign sources in Asia over an 11.5-year period are not
relevant to a NEPA analysis of significant environmental
effect. Moreover, local and domestic emissions are not
appropriate metrics when analyzing the effects of global
warming, which by all accounts (as the majority agrees) can
only be evaluated—if at all—by global GHG emissions.
 350 MONTANA V. HAALAND 43

I

This case is not about the project’s effect on air quality or
some other localized environmental harm, but Interior’s
NEPA analysis of the project’s contribution to global GHG
emissions. We review an agency’s decision under NEPA
under the APA and may “set aside an agency action only if it
is ‘arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.’” Barnes v. U.S. Dep’t of
Transp., 655 F.3d 1124, 1132 (9th Cir. 2011) (quoting
5 U.S.C. § 706(2)(A)). Review under this standard “is
narrow, and we do not substitute our judgment for that of the
agency.” Id. We uphold an agency’s decision of a finding of
no significant impact (“FONSI”) if “the agency has taken a
hard look at the consequences of its actions, based its
decision on a consideration of the relevant factors, and
provided a convincing statement of reasons to explain why
[the] project’s impacts are insignificant.” Id. (cleaned up).
To guide this analysis, I review the statutory and regulatory
framework that controlled Interior’s decision.

A

Congress created an extensive regulatory structure for the
leasing of federal lands for coal production to, among other
things, “assure that the coal supply essential to the Nation’s
energy requirements, and to its economic and social well-
being is provided”; to “strike a balance between protection of
the environment and agricultural productivity and the
Nation’s need for coal as an essential source of energy”; and
to “encourage the full utilization of coal resources through the
development and application of underground extraction
technologies.” 30 U.S.C. § 1202(f), (k).
44 350 MONTANA V. HAALAND

Title 30 thus seeks to balance our nation’s environmental
concerns with economic, energy, and national security
interests. Congress has tasked Interior with this balancing act
and authorizes the Secretary to lease federal lands for coal
production. The Secretary can divide lands that “have been
classified for coal leasing into leasing tracts of such size as he
finds appropriate and in the public interest and which will
permit the mining of all coal which can be economically
extracted.” Id. § 201(a)(1).

Once land is classified and divided for coal leasing,
contemplated leases must meet several requirements that
protect the environment. For example, “[n]o lease sale shall
be held unless the lands containing the coal deposits have
been included in a comprehensive land-use plan and such sale
is compatible with such plan,” subject to minor exceptions.
Id. § 201(3)(A)(i). Any “coal lease shall contain provisions
requiring compliance with the Federal Water Pollution
Control Act . . . and the Clean Air Act.” Id. § 201(3)(E).
And even after a lease is issued, any company conducting
surface coal mining must receive a permit under the relevant
state or federal surface coal mining program. See id.
§ 1256(a).

The Secretary must also consider the “impacts on the
environment” of the lease and “determine which method or
methods or sequence of methods [of mining] achieves the
maximum economic recovery of the coal within the proposed
leasing tract.” Id. § 201(3)(C). Consistent with congressional
intent to maximize the economic benefits of coal, coal leases
“shall be for a term of twenty years and for so long thereafter
as coal is produced annually in commercial quantities from
that lease. Any lease which is not producing in commercial
quantities at the end of ten years shall be terminated.” Id.
 350 MONTANA V. HAALAND 45

§ 207(a). Title 30 thus imposes various requirements to
ensure the Secretary makes informed coal leasing decisions,
including balancing environmental impacts with maximum
economic recovery of the coal.

B

As with all agency action, Interior must also conduct a
NEPA analysis. NEPA is remarkably light on substance.
Adopted in 1970, the statute requires agencies to “utilize a
systematic, interdisciplinary approach which will insure the
integrated use of the natural and social sciences and the
environmental design arts in planning and in decision-making
which may have an impact on man’s environment” and
“insure that presently unquantified environmental amenities
and values may be given appropriate consideration in
decision-making along with economic and technical
considerations.” 42 U.S.C. § 4332(A), (B). If a major
agency action will “significantly affect[] the quality of the
human environment,” the agency must prepare a detailed
statement on:

(i) the environmental impact of the
proposed action,

(ii) any adverse environmental effects
which cannot be avoided should the
proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local
short-term uses of man’s
environment and the maintenance
46 350 MONTANA V. HAALAND

and enhancement of long-term
productivity, and

(v) any irreversible and irretrievable
commitments of resources which
would be involved in the proposed
action should it be implemented.

Id. § 4332(C).

The implementing regulations in effect when the
environmental assessment (“EA”) in this case was finalized
were first adopted in 1978 and provide marginally more
detail. NEPA “does not mandate particular results,”
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
350 (1989), but “insure[s] that environmental information is
available to public officials and citizens before decisions are
made and before actions are taken,” 40 C.F.R. § 1500.1(b)
(all references to the C.F.R. are to the regulations in effect as
of August 2018). The agency must first decide the
appropriate level of NEPA review. See id. § 1501.4. Projects
that have no “significant effect on the human environment”
are categorically excluded from NEPA review, id. § 1508.4,
while other projects require an EA or environmental impact
statement (“EIS”) when necessary under the relevant
agency’s rules. Id. §§ 1501.3, 1501.4, 1507.3.

After considering all the potential environmental effects,
along with existing science, Interior decided here that an EA
was adequate. An EA provides “sufficient evidence and
analysis for determining whether to prepare an environmental
impact statement or a finding of no significant impact; . . .
discuss[es] the . . . need for the proposal[;] alternatives[;] . . .
[and] the environmental impacts of the proposed action and
 350 MONTANA V. HAALAND 47

alternatives.” Id. § 1508.9. An agency must prepare a
FONSI if the agency determines, based on the EA, that the
proposed action will not have significant effects. Id.
§§ 1501.4(e), 1508.13.

When deciding whether the project substantially affects
the environment, Interior is required only to consider effects
from the project that are “reasonably foreseeable,” id.
§ 1508.8(b), and have “a reasonably close causal
relationship” to the project, Dep’t of Transp. v. Pub. Citizen,
541 U.S. 752, 767 (2004). Our sister circuits recognize that
“an impact is reasonably foreseeable if it is sufficiently likely
to occur that a person of ordinary prudence would take it into
account in reaching a decision” and “does not include highly
speculative harms that distort the decisionmaking process by
emphasizing consequences beyond those of greatest concern
to the public and of greatest relevance to the agency’s
decision.” City of Shoreacres v. Waterworth, 420 F.3d 440,
453 (5th Cir. 2005) (first quoting Sierra Club v. March,
976 F.2d 763, 767 (1st Cir. 1992); then Robertson, 490 U.S.
at 354) (cleaned up).

In addition, “a but for causal relationship is insufficient to
make an agency responsible for a particular effect under
NEPA.” Pub. Citizen, 541 U.S. at 767 (internal quotation
marks omitted). Instead, there must be “a reasonably close
causal relationship between the environmental effect and the
alleged cause,” much like the “familiar doctrine of proximate
cause from tort law.” Id. (internal quotation marks omitted).
“In particular, courts must look to the underlying polices or
legislative intent in order to draw a manageable line between
those causal changes that may make an actor responsible for
an effect and those that do not.” Id. (internal quotation marks
omitted). The analysis should not include effects that the
48 350 MONTANA V. HAALAND

agency “has no ability to prevent . . . due to its limited
statutory authority over the relevant actions.” Id. at 770.2

C

The Council on Environmental Quality (“CEQ”) has
issued guidance to agencies in conducting NEPA analyses on
the effects of GHG emissions. Although none of the relevant
guidance was in effect when Interior issued the EA here, they
provide helpful context. See Young v. United Parcel Serv.,
Inc., 135 S. Ct. 1338, 1351 (2015) (“‘the rulings,
interpretations and opinions’ of an agency charged with the
mission of enforcing a particular statute, ‘while not
controlling upon the courts by reason of their authority, do
constitute a body of experience and informed judgment to
which courts and litigants may properly resort for guidance’”
(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

CEQ issued a final guidance document in 2016. This
document recognized that “[c]limate change is a fundamental

2
In 2020, after the EA was finalized, NEPA regulations were
overhauled for the first time since 1978. See Update to the Regulations
Implementing the Procedural Provisions of the National Environmental
Policy Act, 85 Fed. Reg. 43,304 (July 16, 2020),
https://www.govinfo.gov/content/pkg/FR-2020-07-16/pdf/2020-
15179.pdf. The current Administration has expressed an intent to review
these regulations. See Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7037 (Jan.
25, 2021), https://www.federalregister.gov/ documents/2021/01/25/2021-
01765/protecting-public-health-and-the-environment-and-restoring-
science-to-tackle-the-climate-crisis. In the meantime, these regulations
remain in force and control future NEPA analyses. See Wild Virginia. v.
Council on Env’t Quality, 544 F. Supp. 3d 620 (W.D. Va. 2021). Thus,
Interior’s requirements under NEPA on remand may differ substantially
from those analyzed by the majority here.
 350 MONTANA V. HAALAND 49

environmental issue, . . . [and] a particularly complex
challenge given its global nature and the inherent
interrelationships among its sources, causation, mechanisms
of action, and impacts.” CEQ, Final Guidance for Federal
Departments and Agencies on Consideration of Greenhouse
Gas Emissions and the Effects of Climate Change in National
Environmental Policy Act Reviews 2 (Aug. 1, 2016),
https://perma.cc/9DM4-4FGU (“2016 Final Guidance”).
Even though it is a “complex challenge,” “agencies need not
undertake new research or analysis of potential climate
change impacts in the proposed action area, but may instead
summarize and incorporate by reference the relevant
scientific literature.” Id. at 2, 22. In addition, “[a]gencies
should not limit themselves to calculating a proposed action’s
emissions as a percentage of sector, nationwide, or global
emissions in deciding whether or to what extent to consider
climate change under NEPA.” Id. at 11. “[F]or most Federal
agency actions CEQ does not expect that an EIS would be
required based solely on the global significance of cumulative
impacts of GHG emissions, as it would not be consistent with
the rule of reason to require the preparation of an EIS for
every Federal action that may cause GHG emissions
regardless of the magnitude of those emissions.” Id. at 17.

This guidance was withdrawn in 2017. See Withdrawal
of Final Guidance for Federal Departments and Agencies
on Consideration of Greenhouse Gas Emissions and the
Effects of Climate Change in National Environmental Policy
Act Reviews, 82 Fed. Reg. 16,576 (Apr. 5, 2017),
https://www.govinfo.gov/content/pkg/FR-2017-04-
05/pdf/2017-06770.pdf. New draft guidance was released in
2019. See Draft National Environmental Policy Act
Guidance on Consideration of Greenhouse Gas Emissions,
84 Fed. Reg. 30,097 (June 26, 2019), https://perma.cc /H7Q6-
50 350 MONTANA V. HAALAND

GQUK (“2019 Draft Guidance”). The 2019 Draft Guidance
also recognized that “the potential effects of GHG emissions
are inherently a global cumulative effect. Therefore, a
separate cumulative effects analysis is not required.” Id. at
30,098. And it confirmed that agencies “shall conduct NEPA
analyses based on current scientific information and methods
to the extent reasonably available and practicable,” and thus
are not required to create new science. Id.

The 2019 Draft Guidance was withdrawn in early 2021.
See National Environmental Policy Act Guidance on
Consideration of Greenhouse Gas Emissions, 86 Fed. Reg.
10,252 (Feb. 19, 2021), https://www.govinfo.gov/content/
pkg/FR-2021-02-19/pdf/2021-03355.pdf. CEQ stated its
intention to “address in a separate notice its review of and any
appropriate revisions and updates to the 2016 GHG
Guidance. In the interim, agencies should consider all
available tools and resources in assessing GHG emissions and
climate change effects of their proposed actions, including, as
appropriate and relevant, the 2016 GHG Guidance.” Id.

D

In recognition of the various guidance and regulations
dealing with GHG emissions in NEPA analyses, Interior’s
EA for this project extensively details the effects of GHG
emissions on global warming and climate change. The EA
acknowledges that “[t]hrough complex interactions on a
global scale, the emissions of GHGs, along with other
climate-influencing environmental factors, cause a net
warming of the atmosphere.” This global warming then
“contribute[s] to climate change . . . [which then] contributes
to environmental effects around the globe.”
 350 MONTANA V. HAALAND 51

The EA also provides the GHG emissions for the entire
life of the proposed project (240.1 Mt-CO2e), while noting
that “[n]early all (99 percent) of GHGs [from the project] are
emitted outside of the US and 97 percent are a result of coal
combustion.” It also states that per year, “[g]lobal
anthropogenic GHG emissions totaled approximately 54,000
Mt-CO2e,” United States emissions “approximately 7,261 Mt-
CO2e,” and Montana emissions “approximately 40.7 Mt-
CO2e.” The EA notes that both countries that will be using
the coal, South Korea and Japan, “have both submitted . . .
GHG emissions reduction plans . . . [that] may reduce GHG
emissions relative to these estimates during the life of the
Proposed Action.”

The EA thoroughly summarizes that GHG emissions, as
a whole, could cause climate change globally, nationally, and
in Montana. Possible global effects include “heat waves
[that] will occur more often and last longer[;] . . . extreme
precipitation events [that] will become more intense and
frequent in many regions[;] . . . warm[ing] and
acidif[ication]” of oceans; sea level rise; and “mostly
negative impacts [on] biodiversity, ecosystem services and
economic development and amplify[ied] risks for livelihoods
and for food and human security.” National projections
include “changes in temperature and precipitation, increased
frequency of droughts, floods, wildfires, and extreme
storms[;] changes in land cover and terrestrial
biogeochemistry[;] changes in arctic conditions[;] sea level
rise[;] and ocean acidification (and other ocean changes)”;
and “potential subsequent effects to health and society and
ecosystems such as heat-related deaths and illness, disease
spread, [and] changes in growing seasons.” Finally, the “state
of Montana is projected to continue to warm in all geographic
locations”; experience increased precipitation “in winter,
52 350 MONTANA V. HAALAND

spring, and fall,” and decreased precipitation “in summer[;]
. . . reduced snowpack; changes in runoff timing, streamflows
and resultant water availability; . . . increased drought
severity and duration[;] . . . increased forest mortality and net
loss of forested areas; altered forest disturbance regimes;
increase in fire risk; increase in bark beetle survival; . . .
reduction in the amount of carbon stored in forests[;] . . .
[and] both favorable and disruptive effects on” agriculture.

After detailing the possible effects on climate change
from continued and increasing GHG emissions, the EA
analyzed the suitability of quantifying project-specific effects
using SCC. Interior found SCC “not appropriate for project-
level NEPA analyses for a number of reasons. First, NEPA
does not require a cost-benefit analysis. (40 C.F.R.
§ 1502.23).” Additionally, SCC “does not measure the actual
incremental impacts at the project-level on the environment
and does not include all costs or benefits from carbon
emissions.” “The dollar cost figure arrived at based on the
SCC calculation represents the value of damages avoided if,
ultimately, there is no increase in carbon emissions.” This
“dollar cost figure is generated in a range,” however, and this
range can vary wildly “depending on the dollar value and the
discount range used.”

E

Reviewing Interior’s EA, the district court recognized that
it “previously held that the [prior] EA failed to adequately
assess the impacts of [GHG emissions] from the combustion
of coal mined,” because it failed “to quantify the costs of
[GHG] emissions . . . [when SCC] protocol was an available
tool to measure the costs.” 350 Montana v. Bernhardt, 443 F.
Supp. 3d 1185, 1195–96 (D. Mont. 2020). The new EA
 350 MONTANA V. HAALAND 53

“concludes that the [SCC] protocol is too uncertain and
indeterminate to be useful to the analysis” and discusses and
cites “five academic publications and a Bureau of Land
Management report on the indeterminacy of the [SCC]
protocol.” Id. at 1196. Thus, its conclusion “that the protocol
is too uncertain and indeterminate to aid its decision” is
“supported [by] the record” and the district court held it
satisfied NEPA. Id. The district court also acknowledged
that the EA “quantifie[d] increases in global, national, and
local emissions. . . . Indeed, Plaintiffs [did] not challenge
[Interior’s] qualitative discussion of the impacts of
greenhouse gases, which, as this Court previously noted, was
thorough.” Id. at 1198.

II

A

The majority concludes Interior’s actions were arbitrary
or capricious because, in its view, Interior did not adequately
explain its evaluation that the project’s contribution to
climate change would be “minor.” Majority at 21–23. But
the EA quantifies the project’s GHG emissions from coal
combustion and details the possible harm caused by climate
change. The EA also details that there are no scientific
standards by which to measure the project’s incremental
contributions to climate change. The majority ignores the
fact that federal laws and regulations direct Interior not to
consider effects that it “has no ability to prevent . . . due to its
limited statutory authority over the relevant actions.” Pub.
Citizen, 541 U.S. at 770.

The majority’s rationale is based on faulty calculations
and legally irrelevant assumptions. First, although the
54 350 MONTANA V. HAALAND

analysis in the EA uses the total emissions from the life of the
project (projected to be 11.5 years) for its comparisons, the
majority then punishes Interior for its conservative
projections by using this information to compare the total
emissions from the entire life of the project to a single year of
emissions either globally, from the United States, or from
Montana. See Majority at 28–29. Even if project emissions
were compared to overall emissions, the units used to make
the comparison must be the same. By comparing the
emissions of the 11.5-year project to a single year from other
sources, the majority overstates the actual impact of the
project more than ten-fold, concluding that the project would
emit 0.44% of annual GHG emissions rather than accurately
noting it would be just 0.04%.

Second, the EA notes “[n]early all (99 percent) of GHGs
[from the project] are emitted outside of the US and 97
percent are a result of coal combustion” that will occur in
Japan or Korea. But the majority would require Interior to
explicitly compare emissions from this foreign combustion to
annual emissions in Montana and the United States, noting
that the 2018 EA did not include these calculations while the
2015 EA did. Not only did the 2018 EA provide all the data
to make this comparison, neither NEPA nor its implementing
regulations impose any such requirement in the first place.
There is no requirement that an agency cannot remove
irrelevant and unhelpful calculations from later EA iterations,
especially when any concerned citizen with a basic calculator
or pencil and paper can instantly make the same comparison
with the provided data.

Third, it is not obvious that the coal from the project will
be used within the life of the project, and such emissions from
foreign sovereign’s decision to use coal almost certainly
 350 MONTANA V. HAALAND 55

qualify as effects that Interior “has no ability to prevent . . .
due to its limited statutory authority over the relevant
actions.” Pub. Citizen, 541 U.S. at 770. The coal could be
combusted over a longer period or stockpiled for emergencies
and not used at all. Moreover, as the EA notes, South Korea
and Japan “have both submitted” plans that may reduce GHG
emissions “during the life of the Proposed Action.” And even
if the project is not approved, we can hardly say that South
Korea and Japan would cease coal-burning activity. It is
almost certain that these countries would replace the coal
from the proposed project with coal mined elsewhere. This
is because the project’s “share of the East Asian steam coal
export market,” which includes South Korea and Japan, “is
very small, 6 tenths of one percent . . . [and] if the mine
extension were not allowed, other sellers to the East Asian
steam coal export market would replace the coal that would
have been produced by [the project] and [GHG] emissions
would remain unchanged. . . . Hence, the Bull Mountains
mine extension likely would have no impact on [GHG]
emissions.”

Even more inexplicable is what is omitted from the
majority’s comparison to the United States’ and Montana’s
annual emissions. Although the majority insists that the
project’s emissions must include the GHG emissions created
by the combustion of coal in Japan or Korea, the emission
values from the United States and Montana do not include
emissions from fuel mined from those locations and
combusted elsewhere. See Ctr. for Climate Strategies,
Montana Greenhouse Gas Inventory and Reference
Case Projects 1990–2020, Table ES-1 (2007),
https://perma.cc/X9CY-8FC9. Again, the majority compares
apples to oranges.
56 350 MONTANA V. HAALAND

But even if we compared apples to apples, the project’s
emissions should not, as the majority requires, be compared
to Montana’s total emissions. Under the majority’s rationale,
if the project was in California or New York, where statewide
GHG emissions far exceed those of Montana, it would have
less local environmental effect on climate change.3 If this
case dealt with air or water pollution, or some other concrete,
local environmental harm, this may have been an appropriate
comparison. But as all agree, GHG emissions and climate
change are global issues. Thus, a local project comparison
does not make sense for these effects.

B

Even if these statewide and nationwide comparisons were
helpful, they are not legally relevant to the sole question
before us: whether there are significant environmental
impacts that prohibit a FONSI under NEPA. To the contrary,
opinions from our court and Executive Branch guidance make
clear that global warming is not a localized problem, but a
global problem that requires a global analysis. See, e.g.,
Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1143 (9th Cir.
2013) (“there is limited scientific capability in assessing,

3
See Ctr. for Climate Strategies, Greenhouse Gas Emissions
Inventories and Forecasts for Nine Western States 9 tbl.1,
https://perma.cc/XYJ5-GPB5 (gross GHG emissions for California in
2020 were 659 Mt-CO2e compared to Montana’s 46); NYSERDA, New
York State of Opportunity, New York Greenhouse Gas Inventory
1990–2019 4 fig.S-1 (2019), https://perma.cc/84ES-VBPN (New York’s
GHG emissions for 2016 were 227 Mt-CO2e). These sources all provided
GHG emissions in MMt-CO2e, or million metric tons of CO2 equivalent,
while Interior provides GHG emissions in Mt-CO2e, or million tons of
CO2 equivalent. To convert the MMt-CO2e values to Mt-CO2e, these
values were multiplied by 1.102.
 350 MONTANA V. HAALAND 57

detecting, or measuring the relationship between a certain
GHG emission source and localized climate impacts in a
given region”); Barnes, 655 F.3d at 1139 (“the effect of
greenhouse gases on climate is a global problem”); Ctr. for
Biological Diversity v. Nat’l Highway Traffic Safety Admin.,
538 F.3d 1172, 1217 (9th Cir. 2008) (“climate change is
largely a global phenomenon”); 2019 Draft Guidance; 2016
Final Guidance at 11.

The real question is whether the project’s share of global
GHG emissions can be shown to significantly affect the
environment and whether the EA provided “a reasonably
thorough discussion of the significant aspects of the probable
environmental consequences” of these emissions. Ctr. for
Biological Diversity, 538 F.3d at 1194 (internal quotation
marks omitted). To satisfy these requirements, Interior must
“provide sufficient evidence and analysis for” a FONSI and
briefly discuss “the environmental impacts of the proposed
action and alternatives.” 40 C.F.R. § 1508.9. But they need
not create new science to support their findings and we
generally defer to the agency’s expertise in identifying the
relevant metrics to use in an EA. Imperial Cnty., 767 F.3d
at 792.

The asserted flaws with Interior’s EA are not grounded in
any NEPA requirement. Plaintiffs provided no scientific
evidence that an incremental increase of 0.04% of global
GHG emissions (if that were the worst-case result) would
cause a significant impact. They argued almost exclusively
that Interior should have used a SCC analysis in this case.
The majority correctly disposed of this argument as not
required for a NEPA analysis, as it is not the court’s role to
“prescrib[e] a specific metric for the agency to use.” See
Majority at 34. And Interior went to great lengths to fulfill its
58 350 MONTANA V. HAALAND

NEPA obligations: it identified how the project would affect
the environment (including air quality, water quality, and
other metrics) and described the effects of GHG emissions
and climate change on a global, national, and state level. See
also Ctr. for Biological Diversity, 538 F.3d at 1217 (agency
“must provide the necessary contextual information about the
cumulative and incremental environmental impacts” of the
project); WildEarth Guardians v. Jewell, 738 F.3d 298,
308–11 (D.C. Cir. 2013) (upholding an agency action where
the agency “discussed at length the prevailing scientific
consensus on global climate change and coal mining’s
contribution to it”).

It is incongruent for the majority to disregard SCC but
insist that an even less reliable scientific theory, which has no
scientific support in the record, can serve as the basis for
finding an agency action arbitrary or capricious. In doing so,
the majority essentially requires Interior to use and analyze “a
specific metric,” i.e., compare the project’s GHG emissions
from foreign coal combustion to local and domestic
emissions. But no one, not even Plaintiffs, has proposed any
sort of method outside of SCC (which the majority rejected)
to calculate incremental environmental harms from GHG
emissions. Rather than provide any argument about how to
calculate these harms, Plaintiffs and their experts just
conclude that “GHG levels . . . already exceed scientifically
recognized safety thresholds” and projects such as this are
“incompatible with the restoration of our planet’s energy
balance.” That statement is so generic it lacks any real
meaning and is certainly not the type of scientific evidence or
argument relevant to an agency’s NEPA analysis. Neither the
majority nor Plaintiffs point to any evidence in the record to
suggest that science delineates any specific environmental
 350 MONTANA V. HAALAND 59

harm in the action area from (at most) a 0.04% incremental
increase in annual global GHG emissions.

III

So what happens next? I agree with the majority not to
vacate Interior’s approval of the Mine Expansion or direct
Interior to prepare an EIS. As the majority recognizes, “the
record is unclear about the extent to which the agency is
capable of resolving uncertainty regarding the magnitude of
the project’s contribution to the environmental harms
identified in the EA.” Majority at 37. Given this, however,
the proper remedy would be to remand to Interior without
vacatur. See, e.g., Nat’l Family Farm Coal. v. EPA, 966 F.3d
893, 929 (9th Cir. 2020). Instead, the majority remands to the
district court to determine whether an EIS is appropriate and
the consequences that could follow a possible vacatur.

Remand to the district court, rather than directly to the
agency, is questionable at best. It would be improper for the
district court to engage in factfinding to determine the core
issue the majority is concerned about: whether Interior can
resolve the pending scientific uncertainty about the
incremental effects of a 0.04% increase in annual GHG gas
emissions. Indeed, district court factfinding on this issue
would conflict with the APA, which contemplates federal
court review of the administrative record prepared by the
agency. See Ramos v. Wolf, 975 F.3d 872, 900 (9th Cir.
2020) (R. Nelson, J., concurring) (The APA’s “record-review
requirement is not just a meaningless procedural hurdle to
overcome, but a fundamental constitutional protection to
government agency action.”). That is why we normally
remand the matter directly to the agency. Any other course
risks violating the separation of powers principle underlying
60 350 MONTANA V. HAALAND

the APA, which limits courts to reviewing the administrative
record.

Another factor favors remand directly to Interior, whether
by this court or the district court on remand. Because of the
2020 overhaul of NEPA regulations, Interior’s NEPA
obligations on remand may differ greatly from those that
controlled the current EA. For instance, those new
regulations clarify that environmental effects are generally
not relevant to a NEPA analysis “if they are remote in time,
geographically remote, or the product of a lengthy causal
chain.” 40 C.F.R. § 1508.1(g)(2) (2020). It is hard to
envision a course where Interior should not be allowed
simply to compile a new administrative record and conduct
a new EA consistent with the existing NEPA regulations on
remand.

It is difficult to see why an EIS would be necessary absent
some new scientific evidence detailing the possible
incremental environmental effects of a single project’s GHG
emissions. Indeed, an EIS would probably not provide any
more information than was already included in the EA,
especially with the questionable foreseeability of foreign coal
combustion and no scientific way to measure the incremental
impact of GHG emissions. At any rate, that analysis is
properly addressed by Interior on remand, not through an
ambiguous endeavor by the district court. Given these
considerations, it is hard to see how a vacatur or an EIS
should be ordered pending further action by Interior on
remand.
 350 MONTANA V. HAALAND 61

IV

For these reasons, Interior’s FONSI was neither arbitrary
nor capricious under NEPA. And even if it were, the action
should be remanded to the agency to compile a new
administrative record and final decision, not to the district
court. I respectfully dissent.