Dear OSM: Don’t let Utah make environmental protection more difficult

Posted: Jul 21, 2018

Coal mining has been approved in a beautiful Utah canyon, and the bulldozers are coming. Not to worry – the Sierra Club just filed suit and obtained an injunction requiring the drilling to stop until the lawsuit is over. Congratulations, Sierra Club! Now, do you have a few million dollars to hold in escrow until the case is over? No? Then never mind – the bulldozers can come, whether their presence is legal or not.

Utah has enacted a law requiring environmental plaintiffs to set up bonds to compensate developers for delays caused by litigation. If an environmental organization or another plaintiff obtains a preliminary injunction or an administrative stay delaying development after a permit has been issued, that plaintiff must set aside money for a bond that will be used to compensate the developer if the environmental plaintiff ultimately loses the case. This law applies to injunctions or stays delaying permits issued by Utah’s Department of Natural Resources, Department of Transportation, or School and Institutional Trust Lands Administration.

Under the Surface Mining Control and Reclamation Act (SMCRA), the Office of Surface Mining (OSM) must approve Utah’s new law if Utah wants to keep regulating coal mining within its borders. OSM should declare Utah’s new law inconsistent with SMCRA because it makes environmental regulations much harder to enforce.

Preliminary injunctions and administrative stays are used by courts to delay actions that could cause harm to the plaintiffs while the suit is pending. For example, let’s assume that the Utah Department of Natural Resources issues a permit for coal mining in that beautiful Utah canyon. The Wilderness Society sues, claiming that the permit is illegal. The Wilderness Society requests a preliminary injunction, arguing that the coal company should not be allowed to mine until the suit has been resolved, because mining would cause irreparable environmental harm. Under Utah’s new law, if the court agrees and orders mining operations suspended while the suit is pending, The Wilderness Society would be required to set aside money to pay the coal company if The Wilderness Society eventually loses the suit. If the coal company wins the suit, The Wilderness Society would have to pay the coal company for any harm the coal company can prove that it suffered as the result of the delay.

This new law contradicts the spirit, if not the letter, of SMCRA and its implementing regulations. SMCRA allows states to regulate coal mining as long as state regulatory programs conform to a number of criteria. Specifically, SMCRA requires states to impose penalties for violations of Utah state laws or permit conditions. The regulations implementing SMCRA also include this requirement. Regulatory agencies do not have to pay penalties if they issue illegal permits; they just have to take their approval back. However, an injunction against agency action serves the same purpose as a penalty: it stops the illegal action and sends a message to the agency not to take such actions in the future. Under the new law, this type of penalty may be much harder to obtain. Environmental organizations and ordinary citizens may not have enough money to compensate a coal company for its perceived damages. Therefore, they may be less likely to bring suits challenging agency actions. In addition, plaintiffs who do bring a lawsuit may be less likely to request preliminary injunctions. If coal companies are allowed to mine while environmental lawsuits are pending, the outcome of the suit will not matter; the damage will already be done. When an agency illegally issues a permit for environmentally harmful activities, it is much more effective to penalize the agency for its mistake before the mistake has a chance to cause serious damage.

The new law also violates SMCRA’s implementing regulations by interfering with judicial review. The SMCRA regulations require that state programs allow for judicial review to determine whether state agencies are complying with state law. Utah’s bonding requirement limits judicial authority to issue preliminary injunctions or administrative stays. Under current law, a judge may issue a preliminary injunction if there is (1) a high likelihood that the plaintiff will be irreparably harmed if the defendant is allowed to act and (2) a high likelihood that the plaintiff will ultimately win the case. However, Utah’s law imposes a third condition on a judge: he can only grant an injunction if the plaintiff will be able to afford to compensate the defendant if the defendant wins. Thus, if a judge has a wealthy plaintiff before him, he can grant the preliminary injunction, but if the plaintiff is poor, he must deny it – even if the law and his own judgment say he should grant it. Judges should be able to grant injunctions based solely on the merits of the case, not based on the plaintiff’s purse. Otherwise, many justified preliminary injunctions may be denied because the plaintiff cannot afford to pay for the (worthwhile) delay that the injunction causes. This regulation not only interferes with the judge’s authority to decide the case, it also slants outcomes in favor of the wealthy at the expense of the poor. In a court of law, justice is supposed to matter, not the parties’ net worth.

Beyond the law, there are important policy reasons not to stifle preliminary injunctions. First, preliminary injunctions protect the environment from permanent damage that is likely illegal. Because the courts have already ruled that preliminary injunctions must prevent serious harm, any case that is strong enough to secure a preliminary injunction involves the threat of irreparable environmental harm. An action that could significantly alter the environment should not be allowed to occur until it is at least proven to be legal. Furthermore, because of the “high likelihood of winning” requirement, any case that is worthy of a preliminary injunction probably involves illegal activity anyway. The decision to delay a project can be reversed with the stroke of a pen, but the environment can take years to recover once it is harmed. We should err on the side of protecting the environment.

Second, this law is part of a trend that is making environmental cases harder and harder to bring. The Supreme Court has severely limited standing in these types of cases. Now, to be able to challenge environmental harm, a plaintiff (or, if the plaintiff is an environmental organization, one of its members) must have concrete plans to visit that place in the future. Statements that a plaintiff plans to visit a place in the future – without more concrete plans – do not give rise to standing. Thus, plaintiffs practically have to have plane tickets for their next visit to a place before they can even file suit to save that place. In addition, preliminary injunctions aren’t easy to get. As described above, there must be both a high likelihood of harm if the project goes forward and a high likelihood that the suit will be successful. This requirement means that plaintiffs can only get preliminary injunctions in the most egregious cases. Taken together, these restrictions are closing the courthouse doors to more and more lawsuits. Environmental laws will not be effective if no one can enforce them.

Third, Utah’s new law is unnecessary. Sufficient protections exist for coal miners and other developers without requiring plaintiffs to pay damages in these types of cases. Environmentalists frequently challenge permits like the ones protected by this law, and developers have legitimate concerns about being able to complete their projects without frivolous litigation. However, the hurdles described above have greatly reduced the feasibility of frivolous environmental suits. The standing requirements ensure that people can only challenge an agency action if they will be harmed by it. The high bar set for preliminary injunctions means that, in most cases, the developer will be able to go ahead with the project. Finally, a preliminary injunction does not kill a project; it merely delays it until the end of litigation. If a bad preliminary injunction is issued and the permit turns out to be legal, the developer can complete the project at that time.

Ultimately, OSM should declare that Utah’s new law is inconsistent with both SMCRA and sound public policy. Preliminary injunctions and administrative stays help to ensure that projects that may harm the environment do not go forward unless they are legal. While Utah’s law is limited in scope – it only applies to one state and a few administrative agencies within that state – its success could pave the way for similar laws elsewhere. If the choice is between waiting a while longer for a new coal mine or irreparably damaging part of the natural environment, I’m sorry – the coal mine can wait.

-Erin Eastvedt

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