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Wild Earth Guardians v. U.S. Forest Service

United States District Court, D. Wyoming

August 17, 2015

WILD EARTH GUARDIANS, POWDER RIVER BASIN RESOURCE COUNCIL, and SIERRA CLUB, Petitioners,
v.
UNITED STATES FOREST SERVICE, UNITED STATES FOREST SERVICE CHIEF, in his official capacity also known as Tom Tidwell, UNITED STATES FOREST SERVICE ACTING REGION II FORESTER, in her official capacity also known as Maribeth Gustafson, UNITED STATES FOREST SERVICE ACTING REGION II DEPUTY FORESTER, in his official capacity also known as Glenn Casamassa, Respondent. STATE OF WYOMING, BTU WESTERN RESOURCES, INC., NATIONAL MINING ASSOCIATION, WYOMING MINING ASSOCIATION, Respondents-Intervenors. WILDEARTH GUARDIANS and SIERRA CLUB, Petitioners,
v.
UNITED STATES BUREAU OF LAND ANAGEMENT, Respondent. STATE OF WYOMING, BTU WESTERN RESOURCES, INC., NATIONAL MINING ASSOCIATION, and WYOMING MINING ASSOCIATION, Respondents-Intervenors. POWDER RIVER BASIN RESOURCE COUNCIL, Petitioner,
v.
UNITED STATES BUREAU OF LAND MANAGEMENT, a federal agency within the United States Department of Interior, SALL Y JEWELL, in her official capacity as United States Secretary of the Interior, Respondents. STATE OF WYOMING, BTU WESTERN RESOURCES, INC., NATIONAL MINING ASSOCIATION, and WYOMING MINING ASSOCIATION, Respondents-Intervenors

Decided August 14, 2015.

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For WildEarth Guardians, Plaintiff (2:12-cv-00085-ABJ): Jon D Lavallee, LEAD ATTORNEY, PRO HAC VICE, Sheridan, WY; Michael Christopher Soules, LEAD ATTORNEY, Earthjustice, Washington, DC; Nathan Maxon, LEAD ATTORNEY, MAXON LAW OFFICE, Lander, WY; Nathaniel Wallshein, LEAD ATTORNEY, PRO HAC VICE, UNIVERSITY OF COLORADO LAW SCHOOL, Boulder, CO; Shannon Anderson, LEAD ATTORNEY, POWDER RIVER BASIN RESOURCE COUNCIL, Sheridan, WY.

For Powder River Basin Resource Council, Plaintiff (2:12-cv-00085-ABJ): Jon D Lavallee, LEAD ATTORNEY, PRO HAC VICE, Sheridan, WY; Michael Christopher Soules, LEAD ATTORNEY, Earthjustice, Washington, DC; Nathaniel Wallshein, LEAD ATTORNEY, PRO HAC VICE, UNIVERSITY OF COLORADO LAW SCHOOL, Boulder, CO; Shannon Anderson, LEAD ATTORNEY, POWDER RIVER BASIN RESOURCE COUNCIL, Sheridan, WY.

For Sierra Club, Plaintiff (2:12-cv-00085-ABJ): Jon D Lavallee, LEAD ATTORNEY, PRO HAC VICE, Sheridan, WY; Michael Christopher Soules, LEAD ATTORNEY, Earthjustice, Washington, DC; Nathan Douglas Matthews, LEAD ATTORNEY, PRO HAC VICE, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, San Francisco, CA; Nathan Maxon, LEAD ATTORNEY, MAXON LAW OFFICE, Lander, WY; Nathaniel Thomas Shoaff, LEAD ATTORNEY, PRO HAC VICE, SIERRA CLUB, San Francisco, CA; Shannon Anderson, LEAD ATTORNEY, POWDER RIVER BASIN RESOURCE COUNCIL, Sheridan, WY; Valerie A Schoneberger, LEGAL AID OF WYOMING, Lander, WY.

For United States Forest Service, Defendants (2:12-cv-00085-ABJ): John S Most, Marissa A Piropato, LEAD ATTORNEYS, PRO HAC VICE, DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Washington, DC; Nicholas Vassallo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Cheyenne, WY.

For United States Forest Service Chief, in his official capacity, also known as Tom Tidwell, Defendant (2:12-cv-00085-ABJ): Marissa A Piropato, LEAD ATTORNEY, PRO HAC VICE, DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Washington, DC; Nicholas Vassallo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Cheyenne, WY.

For United States Forest Service Acting Region II Deputy Forester, in his official capacity, also known as Brian Ferebee, United States Forest Service Acting Region II Deputy Forester, in his official capacity, also known as Brian Ferebee, Defendants (2:12-cv-00085-ABJ): John S Most, Marissa A Piropato, LEAD ATTORNEYS, PRO HAC VICE, DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Washington, DC; Nicholas Vassallo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Cheyenne, WY.

For State of Wyoming, Intervenor Defendant (2:12-cv-00085-ABJ): James C Kaste, Michael James McGrady, LEAD ATTORNEYS, WYOMING ATTORNEY GENERAL'S OFFICE, Cheyenne, WY.

For BTU Western Resources Inc, Intervenor Defendant (2:12-cv-00085-ABJ): Merril Hirsh, LEAD ATTORNEY, TROUTMAN SANDERS, Washington, DC; Peter S Glaser, LEAD ATTORNEY, PRO HAC VICE, TROUTMAN SANDERS LLP, Washington, DC; Richard A Mincer, Thomas A Nicholas, III, LEAD ATTORNEYS, HIRST APPLEGATE, LLP, Cheyenne, WY.

For National Mining Association, Intervenor Defendant (2:12-cv-00085-ABJ): Michael R Drysdale, LEAD ATTORNEY, PRO HAC VICE, DORSEY & WHITNEY LLP, Minneapolis, MN; William B Prince, LEAD ATTORNEY, DORSEY & WHITNEY, Salt Lake City, UT.

For Wyoming Mining Association, Intervenor Defendant (2:12-cv-00085-ABJ): Andrew C Emrich, LEAD ATTORNEY, HOLLAND & HART, Greenwood Village, CO; Beau Bryan Bump, LEAD ATTORNEY, HOLLAND & HART, Cheyenne, WY.

For WildEarth Guardians, Sierra Club, Plaintiffs (2:13-cv-00042-ABJ): James Jay Tutchton, LEAD ATTORNEY, WildEarth Guardians, Centennial, CO; Michael Christopher Soules, LEAD ATTORNEY, Earthjustice, Washington, DC; Nathan Maxon, LEAD ATTORNEY, MAXON LAW OFFICE, Lander, WY; Samantha Ruscavage-Barz, LEAD ATTORNEY, PRO HAC VICE, WILDEARTH GUARDIANS, Santa Fe, NM; Joanne Marie Spalding, Nathaniel Thomas Shoaff, PRO HAC VICE, SIERRA CLUB, San Francisco, CA; Nathan Douglas Matthews, PRO HAC VICE, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, San Francisco, CA.

For U.S. BUREAU OF LAND MANAGEMENT, Defendant (2:13-cv-00042-ABJ): John S Most, LEAD ATTORNEY, PRO HAC VICE, DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Washington, DC.

For State of Wyoming, Intervenor Defendant (2:13-cv-00042-ABJ): James Kaste, LEAD ATTORNEY, STATE OF WYOMING, Attorney General's Office, Cheyenne, WY; Michael James McGrady, LEAD ATTORNEY, WYOMING ATTORNEY GENERAL'S OFFICE, Natural Resources Division, Cheyenne, WY.

For BTU Resources Inc, Intervenor (2:13-cv-00042-ABJ): Andrew C Emrich, LEAD ATTORNEY, HOLLAND & HART, Greenwood Village, CO; Merril Hirsh, LEAD ATTORNEY, PRO HAC VICE, TROUTMAN SANDERS, Washington, DC; Richard A Mincer, Thomas A Nicholas, III, LEAD ATTORNEYS, HIRST APPLEGATE, LLP, Cheyenne, WY.

For National Mining Association, Intervenor (2:13-cv-00042-ABJ): Andrew C Emrich, LEAD ATTORNEY, HOLLAND & HART, Greenwood Village, CO.

For Wyoming Mining Association, Intervenor (2:13-cv-00042-ABJ): Andrew C Emrich, LEAD ATTORNEY, HOLLAND & HART, Greenwood Village, CO; Beau Bryan Bump, LEAD ATTORNEY, HOLLAND & HART, Cheyenne, WY.

For Powder River Basin Resource Council, Plaintiff (2:13-cv-00090-ABJ): Brad Arthur Bartlett, LEAD ATTORNEY, UNIVERSITY OF DENVER, Environmental Law Clinic, Denver, CO; Michael Christopher Soules, LEAD ATTORNEY, Earthjustice, Washington, DC; Shannon Anderson, LEAD ATTORNEY, POWDER RIVER BASIN RESOURCE COUNCIL, Sheridan, WY.

For U.S. Bureau of Land Management, a Federal agency within U.S. Department of Interior, U.S. Department of Interior Secretary, in her official capacity, also known as Sally Jewell, Defendants (2:13-cv-00090-ABJ): John S Most, LEAD ATTORNEY, PRO HAC VICE, DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Washington, DC; Nicholas Vassallo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Cheyenne, WY.

For State of Wyoming, Intervenor Defendant (2:13-cv-00090-ABJ): Michael James McGrady, LEAD ATTORNEY, WYOMING ATTORNEY GENERAL'S OFFICE, Natural Resources Division, Cheyenne, WY.

For BTU Western Resources Inc, Intervenor Defendant (2:13-cv-00090-ABJ): Megan C Rahman, LEAD ATTORNEY, PRO HAC VICE, TROUTMAN SANDERS LLP, Richmond, VA; Merril Hirsh, LEAD ATTORNEY, PRO HAC VICE, TROUTMAN SANDERS, Washington, DC; Richard A Mincer, Thomas A Nicholas, III, LEAD ATTORNEYS, HIRST APPLEGATE, LLP, Cheyenne, WY.

For National Mining Association, Intervenor Defendant (2:13-cv-00090-ABJ): William B Prince, LEAD ATTORNEY, DORSEY & WHITNEY, Salt Lake City, UT.

For Wyoming Mining Association, Intervenor Defendant (2:13-cv-00090-ABJ): Andrew C Emrich, LEAD ATTORNEY, HOLLAND & HART, Greenwood Village, CO; Beau Bryan Bump, LEAD ATTORNEY, HOLLAND & HART, Cheyenne, WY.

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OPINION AND ORDER AFFIRMING AGENCY ACTIONS

ALAN B. JOHNSON, UNITED STATES DISTRICT JUDGE.

This matter comes before the Court for decision upon the merits of these three administrative appeals. The Court previously consolidated the cases for purposes of review. Case No. 12-CV-85-ABJ has been designated as the lead case. The petitioners have filed three separate opening briefs for consideration. The federal respondents (collectively identified as " United States" unless otherwise specifically stated) have filed a single opposition brief to the petitioners' three opening briefs; the respondents-intervenors (collectively " interveners" ) have filed a single joint response to these three briefs; petitioners have filed three separate replies. All submissions will be considered in this Opinion and Order, with distinctions made between the three separate appeals as required by context and necessity for clarity. The Court has reviewed the administrative record, the parties' written submissions, and applicable law. In these administrative appeals, review is confined to the administrative record.

Background and Facts

The three cases identified in the caption above have been consolidated for review. These cases all concern approval of issuance of two large coal leases within the Powder River Basin in Wyoming, portions of which are located within the Thunder Basin National Grassland. The Bureau of Land Management (" BLM" ) authorized coal leases in areas identified as the North Hilight (" NH" ), South Hilight (" SH" ), North Porcupine (" NP" ), and South Porcupine (" SP" ) coal lease tracts (sometimes " the leases" ), which would expand the North Antelope Rochelle and Black Thunder mines in the Powder River Basin.

In Case No. 13-CV-42-ABJ, petitioners WildEarth Guardians (" WEG" ) and Sierra Club challenge the BLM decisions approving the leasing of these tracts, asserting they do not comply with the requirements of federal law protecting air quality and climate. The Wright Area Final Environmental Impact Statement (" FEIS" )[1] was issued July 2010 approving six coal leases including N.H. and SH, which will expand the Black Thunder Mine, and the NP and SP leases, expanding the North Antelope Rochelle Mine.[2] AR 179. The petitioners assert violations of the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § 4321 et seq., and the Federal Land Policy and Management Act (" FLPMA" ), 43 U.S.C. § 1701 et seq. They seek review of the BLM's actions under the arbitrary and capricious standard of the Administrative Procedure Act (" APA" ), 5 U.S.C. § 706.

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Petitioners contend that the BLM failed to comply with NEPA when it did not take a hard look at local air quality impacts resulting from coal mining, including direct and cumulative air quality impacts of ozone, direct effects of 24-hour PM10 emissions and 24-hour and annual PM2.5 emissions, and direct and cumulative effects of short-term nitrogen dioxide (NO2) emissions on air quality. Further, petitioners contend the BLM failed to take a hard look at climate impacts, including direct, indirect and cumulative impacts to climate caused by carbon dioxide (CO2) emissions from coal mining and combustion. They assert that climate impacts will not change under the No Action Alternative. They further contend that the agency failed to address a reasonable range of alternatives with respect to emissions and climate change.

In Case No. 13-CV-90-ABJ, petitioner Powder River Basin Resource Council (" PRBRC" ) similarly challenges BLM decisions to approve the BLM's NP and SP Lease(s) by Application (" LBAs" ), sought by BTU, a subsidiary of Peabody Energy Corporation, for the 9,607 acre expansion of the North Antelope Rochelle Mine. PRBRC also challenges the BLM's N.H. LBA, applied for by Ark. Land Company, a wholly owned subsidiary of Arch Coal, Inc., for a 4,530 acre expansion of the Black Thunder Mine. These particular leasing decisions were analyzed as part of the BLM Environmental Impact Statement for the Wright Area FEIS, and approved by three separate Records of Decision (" RODs" ). PRBRC asserts the BLM violated NEPA, by failing to take a hard look at critical reclamation reports from cooperating agencies on the FEIS, relying on inaccurate or misleading reclamation data, failing to take a hard look at contemporaneous reclamation at the Black Thunder and North Antelope Rochelle Mines and in the Powder River Basin, and by failing to include in the NEPA analysis compliance with Mineral Leasing Act (" MLA" ) requirements that no corporation may hold or control at one time coal leases on an aggregate of more than 75,000 acres in any one state and no greater than an aggregate of 150,000 acres in the United States.

In Case No. 12-CV-85-ABJ, petitioners WEG, PRBRC, and Sierra Club challenge the United States Forest Service's (" USFS" ) approval of two coal leases within the Thunder Basin National Grassland (" Grassland" ), a unit of the National Forest System,[3] including the NP and SP coal leases. Because the two tracts are partially located on Grassland, USFS must consent to the leases before the BLM can approve leasing of the tracts. The petitioners argue that as the agency charged with protecting land and resources in the Grassland, USFS was required to take a hard look at environmental consequences of the leases before consenting to approval of issuance of the leases by the BLM and did not do so. USFS relied heavily on the BLM's Wright Area EIS in issuing its RODs approving the leases. Petitioners claim the Wright Area FEIS and USFS RODs are deficient, in that USFS failed to consider reasonable alternatives to the leases, failed to consider measures to mitigate the effects of the mines on the area's groundwater supply, and failed to analyze an array of air quality impacts likely to result from the leases.

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As to all three cases, the United States disagrees and in turn asserts the actions of the BLM and USFS satisfied requirements of NEPA. It argues that the climate change claims lack merit. The BLM took the required hard look at climate change impacts and the FEIS analysis of all alternatives, including the No Action Alternative was reasonable. Further, the FEIS properly considered direct and indirect air quality impacts of leasing, including those affecting ozone, particulate matter, nitrogen dioxide, as well as the impacts of coal combustion. As to groundwater and reclamation, the United States says the FEIS properly addressed these considerations. It further asserts the FLPMA, NFMA, and MLA claims lack merit.

The interveners suggest the petitioners do not have standing to bring this action. They contend that petitioners have not carried the NEPA burden of showing the BLM did not take a hard look at potential impacts. Flowing from that discussion, the intervenors further contend that petitioners have failed to show that the USFS violated the NFMA or NEPA. Their contentions essentially echo those set forth by the United States.

Background

National Environmental Policy Act " (NEPA" )

NEPA is a declaration of a " broad national commitment to protecting and promoting environmental quality." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 347, 109 S.Ct. 1835, 1844, 104 L.Ed.2d 351(1989). " To ensure that this commitment is 'infused into the ongoing programs and actions of the Federal Government, the act also establishes some important 'action-forcing' procedures." Id. The statutory scheme directs federal agencies to prepare an Environmental Impact Statement, which must take a " hard look" at the potential impacts of the agency's proposed action. Id. at 350; 42 U.S.C. § 4332(2)(C). See also High Country Conservation Advocates v United States Forest Service, 52 F.Supp.3d 1174, 1181, 2014 WL 2922751 (D. Colo. 2014), citing Robertson and New Mexico ex rel Richardson v. Bureau of Land Management, 565 F.3d 683, 713 (10th Cir. 2009). The preparation of an environmental impact statement serves NEPA's action forcing in two ways: " it ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts" and " it also guarantees that the relevant information will be made available to the larger audience that may also play a role both in the decision making process and the implementation of that decision." Robertson, 490 U.S. at 349. NEPA provides for transparent and informed decisionmaking by an agency and ensures public participation throughout the entire process.

" The EIS must also 'rigorously explore and objectively evaluate all reasonable alternatives' to a proposed action in comparative form, so as to provide a 'clear basis for choice among the options.'" WildEarth Guardians v. U.S. Forest Serv., 828 F.Supp.2d 1223, 1236 (D. Colo. 2011) (quoting 40 C.F.R. § 1502.14). " Reasonable alternatives are those which are 'bounded by some notion of feasibility,' and, thus, need not include alternatives which are remote, speculative, impractical, or ineffective. Id. at 1236-37 (quoting Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1172 (10th Cir. 2002) and citing Custer Cnty. Action Ass'n v. Garvey, 256 F.3d 1024, 1039-40 (10th Cir. 2001)). " The EIS also must briefly discuss the reasons for eliminating any alternative from detailed study." Id. (citing 40 C.F.R. § 1502.14(a)). To determine whether alleged deficiencies in an EIS merit reversal, the Court applies " a rule

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of reason standard (essentially an abuse of discretion standard)." Utahns for Better Transp., 305 F.3d at 1163.
NEPA does not require an explicit cost-benefit analysis to be included in an EIS. 40 C.F.R. § 1502.23 (" [T]he weighing of the merits and drawbacks of the various alternatives need not be displayed in a monetary cost-benefit analysis and should not be when there are important qualitative considerations" ); see also Oregon Natural Res. Council v. Marsh, 832 F.2d 1489, 1499 (9th Cir. 1987), rev'd on other grounds, 490 U.S. 360, 109 S.Ct. 1851, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377; North Carolina Alliance for Transp. Reform, Inc. v. U.S. Dep't of Transp., 151 F.Supp.2d 661, 692 (M.D. N.C. 2001). However, where such an analysis is included it cannot be misleading. Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 446-48 (4th Cir. 1996) (" it is essential that the EIS not be based on misleading economic assumptions" ); Johnston v. Davis, 698 F.2d 1088, 1094-95 (10th Cir. 1983)(disapproving of misleading statements resulting in " an unreasonable comparison of alternatives" in an EIS).

High Country Conservation Advocates v. United States Forest Service, 52 F.Supp.3d at 1181-1182. See also WildEarth Guardians v. Jewell, 738 F.3d 298, 407 U.S. App.D.C. 309 (D.C.Cir. 2013). The rule of reason standard, which is essentially an abuse of discretion standard, is applied to decide whether claimed deficiencies in an EIS are significant to defeat the goals of NEPA. Wild Earth Guardians v. United States Forest Service, 828 F.Supp.2d 1223, 1236-1237 (D.Colo. 2011)(quoting Utahns for Better Transp., 305 F.3d at 1163.)

Standing to Challenge Actions

Whether petitioners have standing to bring these challenges to agency action is a threshold issue. The exercise of judicial power is limited by the Constitution to cases and controversies. Wild Earth Guardians v. United States E.P.A., 759 F.3d 1196,1204-1205 (10th Cir. 2014). The standing doctrine restricts judicial power to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of the law. Id., quoting Summers v. Earth Island Inst, 555 U.S. 488, 492, 129 S.Ct. 1142, 1148, 173 L.Ed.2d 1 (2009).

The petitioners have the burden of establishing the Article III standing elements. To do so, petitioners must

... have suffered an " injury in fact" -- an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) " actual or imminent, not 'conjectural' or 'hypothetical[.]" ... Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be " fairly . . . trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court." . . . Third, it must be " likely," as opposed to merely " speculative," that the injury will be " redressed by a favorable decision." . . .

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (citations omitted).

The United States Supreme Court makes clear that petitioners bear the burden of showing that they have standing for each type of relief sought. Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009), 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009). In the Tenth Circuit, a petitioner must " com[e] forward with evidence of specific facts which prove standing." Bear Lodge Multiple Use Association v. Babbitt, 175 F.3d 814, 821 (10th Cir. 1999).

It is common ground that the respondent organizations can assert the standing

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of their members. To establish the concrete and particularized injury that standing requires, respondents point to their members' recreational interests in the National Forests. While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice. Sierra Club v. Morton, 405 U.S. 727, 734-736, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

Summers v. Earth Island Institute, 555 U.S. at 494, 129 S.Ct. at 1149.

Where, as here, petitioners are citizen environmental groups suing to protect the interests of their members from climate change and accompanying environmental harms, they must demonstrate members would have standing to sue in their own right:

[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect [through the action] are germane to the organization's purpose; and (c) neither the claim nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)[.]

WildEarth Guardians v. Jewell, 738 F.3d 298, 305, 407 U.S. App.D.C. 309 (10th Cir. 2013); Amigos Bravos v. United States Bureau of Land Management, 816 F.Supp.2d 1118, 1124 (D.N.M. 2011).

Petitioners here assert procedural violations by the BLM and USFS with respect to the FEIS issued in this case related to the decisions to offer the tracts for coal leasing. Where a petitioner is asserting procedural rights under NEPA, requirements for redressability are relaxed. Massachusetts v. EPA, 549 U.S. 497, 518, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). The district court in Amigos Bravos v. United States Bureau of Land Management, 816 F.Supp.2d at 1124-1125 stated:

The Supreme Court and the Tenth Circuit have concluded that where a plaintiff is asserting his procedural rights under NEPA the normal requirements for the redressability element are relaxed. Mass. v. EPA, 549 U.S. 497, 518, 127 S.Ct. 1438,167 L.Ed.2d 248 (2007) (" When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant." ); Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 452 (10th Cir. 1996) (concluding that the redressability prong is relaxed).
Nevertheless, " the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute." Summers v. Earth Island Inst, 555 U.S. 488, 129 S.Ct. 1142, 1151, 173 L.Ed.2d 1 (2009). In other words, unless a plaintiff can show an injury-in-fact that is (a) actual or imminent and (b) concrete and particularized, the Court must dismiss for lack of standing.
[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation--a procedural right in vacuo-- is insufficient to create Article III standing. Only a person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.
Summers, 129 S.Ct. at 1151. Thus, while a procedural right " can loosen the strictures of the redressability prong of our standing inquiry," it does not loosen a plaintiff's burden to show a concrete and particularized injury-in-fact. Id.',

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see also Defenders of Wildlife, 504 U.S. at 580-81,112 S.Ct. 2130.

Where the injury claimed is one of process rather than result, requirements for Article III standing are somewhat relaxed or at least conceptually expanded. Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n. 7, 112 S.Ct. 2130, 119 L.Ed.2d 351 ((1992).

First, for an injury in fact WildEarth " need not establish with certainty that adherence to the procedures would necessarily change the agency's ultimate decision." Utah v. Babbitt, 137 F.3d 1193, 1216 n. 37 (10th Cir. 1998). It suffices that the procedures " are designed to protect some threatened concrete interest of [the person] that is the ultimate basis of standing." S. Utah Wilderness Alliance v. Office of Surface Mining Reclamation & Enforcement, 620 F.3d 1227, 1234 (10th Cir. 2010) (emphasis and internal quotation marks omitted). " [W]here plaintiffs properly allege a procedural violation affecting a concrete interest!,] ... the injury results not from the agency's decision, but from the agency's uninformed decisionmaking." Id. at 1234 (emphasis and internal quotation marks omitted). Thus, WildEarth need show only that compliance with the procedural requirements could have better protected its concrete interests. Similarly, to establish redressibility it need show only that the injury--lack of an informed decision--could be redressed by requiring the agency to make a more informed decision. Seeid. at 1235 (" [T]he fact that [the agency] refused to issue an updated ...

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