1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) WESTERN ORGANIZATION OF RESOURCE ) COUNCILS and FRIENDS OF THE EARTH , ) ) Plaintiff s , ) ) v. ) ) Civil A ction No. 14

- 1993 (RBW) SALLY JEWELL, in her capacity as Secretary of ) t he Interior, DEPARTMENT OF THE ) INTERIOR, N EIL KORNZE, in his capacity as ) Director, Bureau of Land Management, and ) BUREAU OF LAND MANAGEMENT, ) ) Defendant s
. )

__________________________________________)
MEMORANDUM OPINION The plaintiff s, Western Organization of Resource Councils and Friends of the Earth, filed this civil action against the defendants

— the Department of the Interior (“Interior”), Sally Jewell
in her capacity a s Secretary of the Interior, the Bureau of Land Management (“Bureau”), and Neil Kornze in his official capacity as Director of the Bureau (collectively, the “federal defendants”)

— “for declaratory and injunctive relief , ” concerning the federal de fendant s ’ alleged “failure . . . to supplement its [1979] environmental impact analysis of the federal coal management program . . . [and] assess the effect of the [p] rogram on the global climate, as required by the National Environmental Policy Act [, ] [ 42 U.S.C. § 4321 (2012)] and the
Administrativ e Procedure Act[, ] [ 5 U.S.C. §§ 702, 706 (2012)]

. ” Complaint (“Compl.”) ¶ 1 ; see also id. ¶¶ 13

- 16

. After the institution of this action, the Court permitted the State of Wyoming, the State of North Dakota, and the Wyoming Mining Association to intervene (“intervenor

defendants”)

. See July 15, 2015 Order (“Order”) at 7

- 13, ECF No. 37; February 18, 20152 Minute Order. Currently pending before the Court are the Federal Defendant[s’] Corrected Motion to Dismiss (“ Defs.’ Mot.” ), the State of Wyoming’s Motion to Dismiss (“Wyo. Mot.”), the State of North Dakota’s Motion to Dismiss (“N.D. Mot.”), and the Wyoming Mining
Association’s Motion to Dismiss (“Wyo. Mining Ass’n Mot.”)

. Upon careful consideration of the partie s’ submissions, 1 the Court concludes for the reasons below that it will grant the federal
defendants ’ motion to dismiss and therefore, deny the other motions to dismiss as moot.
I. BACKGROUND
A. National Environmental Policy Act Congress enacted the National Environmental Policy Act ( “NEPA ”) for the purpose of “promot[ing] efforts which will prevent or eliminate damage to the environment and biosphere

. .

. . ” 42 U.S.C. § 4321; see also id. § 4371. The NEPA provides that a federal agency shall
include in eve ry recommendation or report on . . . major [f] ederal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on (i) the environmenta l impact of the proposed action, (ii) any adverse environment al effects which cannot be avoided should the proposal be implemented, [and] (iii) alternatives to the proposed action

. . . . Id. § 4332(2)(C). This is commonly referred to as an Environmental Impact Statement (“EIS”). Oceana v. Bureau of Ocean Energ y Mgmt. , 37 F. Supp. 3d 147, 151 (D.D.C. 2014)

. The pertinent regulations implemented pursuant to the NEPA require the agency to prepare a

1 In addition to the filings already referenc ed, the Court considered the following submissions in rendering its decision: (1) the [Federal Defendants’] Memorandum of Law [in Support of Their Motion to Dismiss] (“Defs.’ Mem.”); (2) the Plaintiffs’ Response in Oppositio n to [the] Federal Defendants’ Motion to Dismiss (“Pls.’ Opp’n”); (3) the Federal Defendant[s’] Reply in Support of Their Corrected Motion to Dismiss (“Defs.’ Reply”); (4) the State of Wyoming’s Memorandum in Support of Motion to Dismiss (“Wyo. Mem.”); (5) the State of North Dakota’s Memorandum in Support of its Motion to Dismiss (“N.D. Mem” ); (6) the Wyoming Mining Association’s Memorandum of Law in Support of its Motion to Dismiss (“Wyo. Mining Ass’n Mem.” ); (7) the Plaintiffs’ Consolidated Response in Op position to [the] State of North Dakota’s Motion to Dismiss and Wyoming Mining Association’s Motion to Dismiss (“Pls.’ Consolidated Opp’n” ); (8) the Plaintiffs’ Response in Opposition to [the] State of Wyoming’s Motion to Dismiss (“Pls.’ Wyo. Opp’n”); and (9) the State of Wyoming’s Reply Memorandum in Support of Motion to Dismiss (“Wyo. Reply”).3 programmatic EIS in certain circumstances. See 40 C.F.R. § 1508.25 (2012). And a supplement
to the programmatic EI S is necessary when either “the agency makes substantial changes in the proposed action that are relevant to environmental concerns” or “there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed

a ction or i ts impacts.” Id. § 1502.9(c) (1)(i)

- (ii)

. B. The Federal Coal Management Program The following allegations are derived from the plaintiffs’ complaint. The Bureau, an agency within Interior, implemented the federal coal management program (the “prog ram”) in 1979. Compl. ¶¶ 3, 48, 66 , 190

. Through the program, the Bureau has issued, and continues to issue, leases to private parties that “grant[] [them] the right to mine coal from federal lands.” Id. ¶ 4 ; see also id. ¶¶ 47

- 50 (describing how leases are obtained ) ; id. ¶¶ 67

- 68

. Before the Bureau implemented the program in 1979, it prepared a programmatic EIS for the program

. Id. ¶ 13 ; see also id. ¶¶ 57

- 65 (describing certain details of the 1979 analysis) . Th e 1979 programmatic EIS has “never [be en] supplemented . . . with an evaluation of the . . . program’s effect on climate change.” Id. ¶ 16. More specifically, the 1979 programmatic EIS has never been updated “to assess the effect[s] on climate change of greenhouse gas emissions resulting fro m the . . . program, or to consider policies that could reduce [those] effects.” Id. ¶ 9 ; see also id. ¶ 189

. C. The Plaintiffs The plaintiffs are non

- profit entities, whose “members live, work, recreate, and conduct other activities in areas adjacent to tr acts where coal mining occ urs pursuant to leases issued
under the

. . . program, ” i d. ¶ 25 , as well as in “areas affected by emissions from electric power plants that burn coal mined under [these] leases,” id. ¶ 26. They allege that t heir “members are4 aff ected by poor air quality associated with mining . . . . ” I d. ¶ 25. According to the plaintiffs,
their members “ have

. . . substantial interest [s] in [ensuring] they brea t he air that will not injure their health, ” id. , as well as using and enjoying these areas for various public purposes, which they cannot do because of the alleged harm from the “combustion of coal,” id. ¶¶ 25

- 26. In light of these purported injuries, resulting from the federal defendants’ failure to supplement its 1979
environmental ana lysis, which the plaintiffs claim is in violation of the Administrative Procedure
Act (“APA”) , 5 U.S.C. § 706(1), (2)(A) (2012) , Compl. ¶¶ 192, 195

- 97, the plaintiffs filed suit against the federal defendants, seek ing , inter alia , to compel them to supplem ent the 1979 analysis , id. ¶¶ 1, 19

. II. LEGAL STANDARDS
A. Motion To Dismiss
A complaint must contain “a short and plain statement of the claim showing that the pleader is ent itled to relief. ” Fed. R. Civ. P. 8(a)(2). So to survive a motion to dismiss for
“f

ailure to state a claim upon which relief may be granted,” Fed. R. Civ. P. 12(b)(6), the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, ’ ” Ashcroft v. Iqbal , 556 U.S. 662 , 678 (2009) ( quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007 ))

. The “ claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alle ged.” Id. (citing Twombly , 550 U.S. at 556) ; see also Kowal v.
MCI Commc’ ns Corp. , 16 F.3d 1271, 1276 (D.C. Cir. 1994) (plaintiff is entitled to “ the benefit
of all inferences that can be derived from the facts alleged ” )

. Although the Court must accept t he facts ple a d ed as true, legal allegations devoid of factual support are not entitled to this assumption. See , e.g. , Kowal , 16 F.3d at 1276. Along with the allegations made withi n the four5 corners of the complaint, the c ourt can consider “any documents either attached to or incorporated in the complaint and matters of which [it] may take judicial notice.” EEOC v. St.
Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997).
B. Administrative Procedure Act
The Administrative Procedure Act (“ APA ” ) “establishes a cause of action for those ‘suffering legal wrong because of agency action, or adversely affected or aggrieved by agency
action. ’ ” Koretoff v. Vilsack , 614 F.3d 532, 536 (D.C. Cir. 2010) (quoting 5 U.S.C. § 702). T he
APA directs the court to “compel agency action unlawfully withheld.” 5 U.S.C. § 706(1)

. A claim under the “unlawfully withheld” provision of 5 U.S.C. § 706(1) can proceed only if it
contends that the “agency failed to take a discrete agency action that it is required to take .”
Norton v. S. Utah Wilderness Al l

. , 542 U.S. 55, 64 (2004). The APA also directs court s to “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance w ith law.” 5 U.S.C. § 706(2)(A)

. In making this inquiry u n der 5 U.S.C. § 706(2) , a reviewing court “mu st consider whether the [agency’ s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Or

. Nat

. Res. Council , 490 U.S. 360, 378 (1989) (internal quotation marks omitted).
III. ANALYSIS The plaintiffs a rgue that the federal defendants have neglected their obligation to supplement the 1979 EIS for the federal coal management program 2 und er the NEPA and its

2 There is some dispute amongst the various parties concerning the scope of the federal coal management program for which an EIS was prepared

. E.g. , Wyo. Minin g Ass’n Mem. at 4

- 5 (disagreement as to whether 1979 EIS evaluated regional leasing process or included both the regional licensing pro cess and leasing through the application process). Another member of this Court has already found that the program asses sed by the 1979 EIS includes both “the competitive regional application process . . . [and] the leasing

- for

- application process.” Wildearth Guardians v. Salazar , 783 F. Supp. 2d 61, 73 (D.D.C. 2011). Those parties that would have the Court (continued . . .)6 implementing regulations

. 3 S ee Compl. ¶¶ 9, 13

- 16, 189

- 96 . According to the plaintiff, the
federal defendants’ obligation to supplement exists because the program is “ an ongoing major
federal action , ” as the federal d efendants have “ c ontinue [d] ,” and will continue, “ to iss ue new leases under the program, ” Pls.’ Consolidated Opp’n at 3; see also Pls.’ Opp’n at 14

- 15, and such conduct has, and will have, a significant impact on the environment

— specifically, climate change , s ee Compl. ¶¶ 9, 13

- 16, 189

- 96. No existing authority, however, permits the Court to impose the purported obligation on the federal defendants. The pertinent regulation requires the federal defendants to supplement an EIS only where the agency plans on making “ substant ial changes [to] the proposed action that are relevant to
environmental concerns ” or where “there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or i ts impacts.” 40 C.F.R. § 1502.9(c) (1)(i)

- (ii) (emphasis added)

. There is no underlying “ proposed action ” in this case to trigger an obligation to supplement the 1979 EIS because the federal coal management program has been implemented. See Compl . ¶ ¶ 47

- 50, 66, 68 , 80 , 190. Leasing decis ions are made pursuant to a pre

- approved and EIS

- supported program

. And there is no allegation that the
federal defendants have issue d, and continue to issue, leases in a manner other than what was contemplated under the program implemented in 1979 or tha t they have proposed to amend the leasing program since 1979. 4 See id. ¶¶ 47

- 50, 66, 68 , 80, 190; c f. Greater Yellowstone Coal. v.

(. . . continued) narrowly chara cterize the program , i.e., the program assessed did not include leasing through the application process, provide no basis for the Court to deviate from the finding in Wildearth Guardians

.
3 The federal defendants question whether the plaintiffs’ have as serted a claim under 5 U.S.C. § 706(1) or 5 U.S.C. § 706(2). See, e.g. , Defs.’ Mem . at 1, 7. The Court need not decide that issue , as the plaintiffs have relied on only one argument to support their APA claim(s).

4 There are allegations in the complai nt concerning amendments to the program and proposa ls to amend the program after 1979

. See Compl. ¶¶ 66

- 77. B ased on a reasonable reading of the plaintiffs ’ complaint

— as well as their submissions

— it does not appear that any post

- 1979 actions affected the le asing

- by

- application process by (continued . . .)7 Tidwell , 572 F.3d 1115, 1122

- 23 (10th Cir. 2009) (“While the [government] could potentially
amend the [federal action at iss ue] in such a manner as to constitute a major federal action , there is no allegation this has occurred. ” (emphasis added)); id. at 1125 n.4.
The Court’ s conclusion is in accord with precedent. In Norton , the respondents filed suit against the petitioners in district court, alleging that the petitioners “fail[ed] to act to protect public lands in Utah from damage caused by [off

- road vehicle] use.” 542 U.S at 60. The petitioners protect ed these public lands in Utah through , inter alia , a programmatic “land use plan,” which wa s “adopted after n otice and comment” and indicated how particular land can be
used. Id. at 59

- 60. One claim advanced by the respondents in Norton was that the petitioners were required to “ undertake supplemental environmental analyses for areas [in Utah,] in which [off

- road vehicle] use had increased .” Id. at 61. In overruling the Tenth Circuit’s reversal of the
district court’s dismissal of this claim, the Supreme Court relied on the principle that

“ supplementation is necessary only if ‘t here remains “ major [f]ederal action ” to occur,’ ” id. at 73 (one alteration omitted) (emphasis added) (quoting Marsh , 490 U.S. at 374 ) . The Supreme Court found that although the “ approval of a land use plan” was a “major [f]ederal action” subject to an EIS, “that [ federal ] action is completed when the [land use] plan is approved.” Id. (alteration omitted) (emphasis in original). And “[t] he land use plan was the ‘proposed action’ contemplated by [40 C.F.R. § 1502.9(c)].” Norton , 542 U.S. at 73. T h erefore, even after noting that the petitioners “may issue management decisions to implement [the] land use plan[],” id. at 69 (internal quotation marks omitted), the Supreme Court nonetheless concluded there could be “no ongoing ‘major [f]ederal action’ t hat could require supplementation . . . .” Id. ; see also

(. . . continued) which the federal defendants issue the leases complained of by the plaintiffs. See, e.g. , id. ¶ 80 (“[the Bureau] has continued to issue coal leases under the federal coal management program as contemplated under the 197 9 [programmatic EIS]” )

.8 Hammond v. Norton , 370 F. Supp. 2d 226, 255 (D.D.C. 2005) (“[I]f the actions remaining . . . are ‘purely ministerial,’ . . . then . . . no [suppl emental EIS] must be prepared.”). Likewise, the possi bility of major federal action remaining here was foreclosed after the federal coal management program was implemented in 1979 and that same program continues to govern the leases today

. Compl. ¶¶ 47

- 50, 66, 68 , 80 , 190. Once the federal coal management
program w ent in to effect , the proposed federal action came to an end. That the federal
defendants continue to issue leases in a manner consistent with the federal coal management
program introduced in 1979, does not cons t itute an “ ongoing ‘major [f]ederal action,’” Norton , 542 U.S. at 73, ne cessitating a supplemental EIS, cf. Ctr. for Biological Diversity v. Salazar , 706 F.3d 1085, 1095 (9th Cir. 2013) (“ additional, independent actions

. . . did not trigger [statutory] supplementation of the

. . . environm ental analysis ” where those actions did not “affect[] the validity or completeness ” of the plan for which the environmental analysis was conducted) ; Greater Yellowstone , 572 F.3d at 1124 ( recognizing that there is no remaining major federal
action “ merely because an agency retains a degree of discretion in a project ”); Yount v. Salazar , No. 11

- C

- 8171

- PCT

- DGC, 2013 WL 2370619, at *1, *2 (D. Ariz. May 29, 2013) (where the Secretary of Interior decided “to withdraw from mineral development over one million acr es of public lands in the Grand Canyon Watershed in Northern Arizona , ” and where assuming that the Secretary of Interior may have had to evaluate claims from “ mining claimants in the withdrawal

area [,] seek [ing] mineral exams to demonstrate that their clai ms constitute pre existing rights exempt from the withdrawal ,” there was no remaining federal action because the exams “were not required to effectuate the withdrawal ” and had “no bearing on the withdrawal decision
itself” ); Audubon Naturalist Soc’ y of t he Cent . Atl. States, Inc. v. U.S. Dep’ t of Transp. , 524 F. Supp. 2d 642, 710 (D. Md. 2007) (no major federal action remained where defendants had9 already made “critical decision” to move forward with highway construction project, despite the
fact that “ appro val of [certain] . . . design

- build contracts ” was “still pending”) ; Envtl. Prot. Info.
Ctr. v. U.S. Fish & Wildlife Serv. , No. 04

- CV

- 4647

- CRB, 2005 WL 3021939, at *5 , *6 (N.D. Cal. Nov. 10, 2005) ( no major federal action remaining where government had “ad aptive management” role i.e., “ongoing monitoring ” responsibilities pursuant to a conservation plan)

. Finally, the Court finds the plaintiffs’ reliance on Marsh , 490 U.S. at 371

- 72, Friends of
the Clearwater v. Dombeck , 222 F.3d 552 (9th Cir. 2000) , and N at’l Wildlife Fed’n v. Appalachian Reg’l Comm’ n , 677 F.2d 883 (D.C. Cir. 1981) , un availing. Pls.’ Opp’n at 5

- 9. None of these cases present analogous facts where, as here, the government has implemented a n EIS

- supported program that requires some degree of management after its implementation. In other words, these cases fail to advise the Court as to when a programmatic EIS must be supplemented . Rather , Marsh , 490 U.S. at 363, 367, 371

- 72 , and Friends of the Clearwater , 222
F.3d at 554

- 55 , 558, concerne d supplementation of an EIS for specific projects. And Nat ional
Wildlife only touched upon the issue of when a programmatic EIS must be prepared. See 677
F.2d at 891

- 92. In deed , National Wildlife appears to support the Court’s rationale for finding
that there is no ongoing major federal action in this case. See id. at 891 (where there is a government “plan,” continuing major federal action can exist only if “considerable implementation remained”). 5 In short, the plaintiffs have not directed the Court t o any authority that requires the federal defendants to supplement the 1979 programmatic EIS for the federal coal management program.

5 Despite the absence of a programmatic EIS, the District of Columbia Circuit in National Wildlife concluded that the government complied with its obligations under the NEPA because i t conducted “site specific EISs ” for individual projects , pursuant to a larger highway development project

. See 677 F.2d at 891

. According to the plaintiffs’ allegations, the federal defendant s have conducted such site

- specific analyses. See Compl. ¶ 18

.10 IV. CONCLUSION For the foregoing reasons, the Court grants the federal defendants’ motion to dismiss on the ground that they have no duty to supplement the 1979 programmatic EIS for the federal coal management program because there is no remaining or ongoing major federal action that confers upon them a duty to do so.
SO ORDERED this 2 7 th day of August , 2015. 6
REGGIE B. WALTON United States District Judge

6 The Court has contemporaneously issued an O rder consistent with this Memorandum Opinion.