United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 18, 2013 Decided December 24, 2013 

No. 12-5300 

WILDEARTH GUARDIANS, ET AL., 

APPELLANTS

POWDER RIVER BASIN RESOURCE COUNCIL, CA-11-037, 

APPELLANT

v. 

SALLY JEWELL, SECRETARY, U.S. DEPARTMENT OF INTERIOR,

ET AL., 

APPELLEES

Consolidated with 12-5312 

Appeals from the United States District Court 

for the District of Columbia 

(No. 1:10-cv-01174) 

Samantha Ruscavage-Barz argued the cause for the 

appellants. Scott Gollwitzer and Matt Kenna were on brief. 

Michael P. Senatore entered an appearance. 

J. David Gunter II, Attorney, United States Department of 

Justice, argued the cause for the appellees. 
2 

James Kaste, Senior Assistant Attorney General, Office of 

the Attorney General for the State of Wyoming, Creighton R. 

Magid, Andrew C. Emrich and John A. Bryson were on brief 

for intervenors Antelope Coal, LLC, et al. in support of the 

appellees. Michael J. McGrady, Senior Assistant Attorney 

General, Office of the Attorney General for the State of 

Wyoming, and Jay C. Johnson entered appearances. 

Before: HENDERSON and BROWN, Circuit Judges, and 

GINSBURG, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge HENDERSON. 

KAREN LECRAFT HENDERSON, Circuit Judge: In April 

2005, Antelope Coal LLC (Antelope Coal) filed an application 

with the Bureau of Land Management (BLM), an agency 

within the U.S. Department of the Interior (Interior), 

requesting that a tract of federal land adjacent to Antelope 

Coal’s existing mine in the Wyoming Powder River Basin be 

offered for competitive lease sale to interested parties. In 

March 2010 the BLM issued a Record of Decision (ROD), 

dividing the land into two tracts (the West Antelope II tracts) 

and offering them for lease through separate competitive 

bidding processes. WildEarth Guardians, Defenders of 

Wildlife, the Sierra Club (collectively, WildEarth) and the 

Powder River Basin Resource Council (PRBRC and, 

collectively with WildEarth, Appellants) challenge the BLM’s 

decision to approve the West Antelope II tracts for lease. 

They argue that the Final Environmental Impact Statement 

(FEIS) supporting the ROD is deficient in several respects. 

The district court granted summary judgment to the 

defendants,1

 finding that the plaintiffs lacked standing to raise 

 1

 The defendants include Interior Secretary Sally Jewell, the 

BLM and the United States Fish and Wildlife Service. The district 

court permitted Antelope Coal, the State of Wyoming and the 
3 

one of their arguments and that their remaining arguments 

failed on the merits. We conclude that, while they do have 

standing, their merits arguments fall short. Accordingly, we 

affirm the judgment of the district court. 

I 

A 

Under the Mineral Leasing Act (MLA), 30 U.S.C. §§ 181 

et seq., the Interior Secretary is authorized to offer leases on 

tracts of federal land suitable for coal mining and to award such 

leases based on a competitive bidding process. Id.

§ 201(a)(1). Pursuant to its authority under the MLA, see id.

§ 189, the BLM has promulgated regulations governing the 

competitive leasing of rights to extract federal coal. See 43 

C.F.R. pt. 3420. 

The National Environmental Policy Act of 1969 (NEPA), 

42 U.S.C. §§ 4321 et seq., requires federal agencies, including 

the BLM, to consider and report on the environmental effect of 

their proposed actions. See Theodore Roosevelt Conservation 

P’ship v. Salazar (Theodore Roosevelt I), 616 F.3d 497, 503 

(D.C. Cir. 2010). “NEPA is an ‘essentially procedural’ statute 

intended to ensure ‘fully informed and well-considered’ 

decisionmaking . . . .” New York v. NRC, 681 F.3d 471, 476 

(D.C. Cir. 2012) (quoting Vt. Yankee Nuclear Power Corp. v. 

Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978)). 

“NEPA has twin aims. First, it places upon an agency the 

obligation to consider every significant aspect of the 

environmental impact of a proposed action. Second, it 

 

National Mining Association to intervene as defendants. See 

WildEarth Guardians v. Salazar, 272 F.R.D. 4 (D.D.C. 2010). The 

district court also dismissed one of WildEarth’s claims on the 

pleadings, which claim is not appealed. See WildEarth Guardians 

v. Salazar, 783 F. Supp. 2d 61 (D.D.C. 2011). 
4 

ensures that the agency will inform the public that it has indeed 

considered environmental concerns in its decisionmaking 

process.” Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 

Inc., 462 U.S. 87, 97 (1983) (citation and quotation marks 

omitted); accord Dep’t of Transp. v. Pub. Citizen, 541 U.S. 

752, 768 (2004). To meet these aims, NEPA requires an 

agency to prepare, and solicit public comment on, an 

environmental impact statement (EIS) whenever it proposes a 

“major Federal action[] significantly affecting the quality of 

the human environment.” 42 U.S.C. § 4332(2)(C). The EIS 

must consider, inter alia, “the environmental impact of the 

proposed action,” id. § 4332(2)(C)(i); “any adverse 

environmental effects which cannot be avoided,” id. 

§ 4332(2)(C)(ii); see Robertson v. Methow Valley Citizens 

Council, 490 U.S. 332, 351–52 (1989); and any “alternatives to 

the proposed action,” 42 U.S.C. § 4332(2)(C)(iii); see Citizens 

Against Burlington, Inc. v. Busey, 938 F.2d 190, 194–95 (D.C. 

Cir. 1991) (noting that “alternatives” is not self-defining and 

“must be moored to ‘some notion of feasibility’ ” (quoting Vt. 

Yankee, 435 U.S. at 551)). The EIS is to be prepared in 

consultation with any federal agency with special expertise 

relating to the environmental impact involved, 42 U.S.C. 

§ 4332(2)(C) (flush language), and the Environmental 

Protection Agency (EPA) must review it and submit written 

comments, see id. § 7609(a). The EIS also must include a 

“cumulative impact” analysis addressing “the incremental 

impact of the action when added to other past, present, and 

reasonably foreseeable future actions” of any agency or 

individual. 40 C.F.R. § 1508.7; see 40 C.F.R. § 1508.25;

TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 

F.3d 852, 864 (D.C. Cir. 2006). NEPA does not, however, 

“require agencies to elevate environmental concerns over other 

appropriate considerations. . . . [I]t require[s] only that the 

agency take a ‘hard look’ at the environmental consequences 

before taking a major action.” Balt. Gas & Elec., 462 U.S. at 
5 

97 (citation omitted) (quoting Kleppe v. Sierra Club, 427 U.S. 

390, 410 n.21 (1976)). It requires informed decisionmaking 

“but not necessarily the best decision.” New York, 681 F.3d at 

476; see also Winter v. Natural Res. Def. Council, Inc., 555 

U.S. 7, 23 (2008) (“NEPA itself does not mandate particular 

results.” (quoting Robertson, 490 U.S. at 350)). 

The BLM is also constrained by the Federal Land Policy 

and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701 et 

seq., which requires it to “manage the public lands under 

principles of multiple use and sustained yield,” id. § 1732(a). 

Multiple use requires balancing the competing uses of land, id. 

§ 1702(c); sustained yield requires the BLM to control 

depleting uses over time, id. § 1702(h). See also Norton v. S. 

Utah Wilderness Alliance, 542 U.S. 55, 58 (2004). The BLM 

does so by using a “multi-step planning and decisionmaking 

process” that begins with the formation of a land use plan for a 

geographic region called a resource management plan. 

Theodore Roosevelt I, 616 F.3d at 504; see 43 C.F.R. 

§ 1601.0-5(n) (describing contents of resource management 

plan). The resource management plan “does not, however, 

include a decision whether to undertake or approve any 

specific action. Specific projects are reviewed and approved 

separately, but must conform to the relevant [plan].” 

Theodore Roosevelt I, 616 F.3d at 504 (citing 43 C.F.R. 

§§ 1601.0-5(n), 1610.5-3(a)); see also Norton, 542 U.S. at 59–

60. 

B 

 The Wyoming Powder River Basin is the largest source of 

coal in the United States. It accounted for more than 33 per 

cent of all coal mined in the United States in 2003. An 

increasing percentage of the coal mined in the United States in 

recent years comes from the Powder River Basin because its 

coal is lower in sulfur than most coal, contains less fly ash 
6 

when burned and can be mined using surface mining methods 

that are generally safer and less labor intensive than 

underground mining. 

 Antelope Coal operates a coal mine (Antelope Mine) in 

the Wyoming Powder River Basin. The Antelope Mine 

produced 33.9 million tons of coal in 2006, representing 7.9 

per cent of the coal produced in the Wyoming Powder River 

Basin and 1.1 per cent of the estimated carbon dioxide (CO2) 

emissions in the United States. If production continues at 

average historical rates, the Antelope Mine’s coal reserves will 

be depleted within the decade. In order to extend the life of 

the mine, Antelope Coal sought to lease the West Antelope II 

tracts, encompassing 4,100 acres of federal coal reserves on 

two separate tracts adjacent to the mine. 

 On April 6, 2005, Antelope Coal applied to the BLM, 

requesting that the West Antelope II tracts be offered for 

competitive lease sale. On October 17, 2006, the BLM 

published a notice of its intent to prepare an EIS for leasing the 

West Antelope II tracts and announced that it planned to hold a 

public “scoping” hearing to solicit comments on the issues to 

be considered in the EIS. On February 8, 2008, the EPA 

published a notice of the availability of the draft EIS and 

solicited public comment on it. The BLM received comments 

on the draft EIS at a public hearing and in writing. On 

December 19, 2008, the EPA published a notice of the 

availability of the FEIS. The FEIS spans nearly five hundred 

pages and includes the BLM’s responses to public comments 

on the draft EIS. The BLM solicited further public comment 

on the FEIS and issued written responses to the comments it 

received. On March 25, 2010, the BLM issued the ROD, 

approving Antelope Coal’s application and dividing the land 

into two tracts, each to be offered for lease by competitive 

bidding. Antelope Coal won the bidding for both leases and 

the leases became effective in 2011. 
7 

After the BLM approved the leases, WildEarth and the 

PRBRC each filed a notice of administrative appeal with the 

Interior Board of Land Appeals (IBLA). WildEarth sought a 

stay of the ROD pending appeal but the IBLA did not act on 

WildEarth’s motion within 45 days, thus making the ROD the 

BLM’s final agency action in WildEarth’s appeal. 43 C.F.R. 

§ 4.21(a)(3), (c). The PRBRC pursued its administrative 

appeal and the IBLA affirmed the ROD in full. See Powder 

River Basin Res. Council, 180 IBLA 119 (2010); see also 43 

C.F.R. § 4.21(d) (IBLA decision is final agency action). 

WildEarth and the PRBRC filed separate complaints in the 

district court raising similar challenges to the adequacy of the 

FEIS.2

 The district court consolidated the two cases and, 

upon the parties’ cross-motions, granted summary judgment to 

the defendants on all claims. WildEarth Guardians v. 

Salazar, 880 F. Supp. 2d 77 (D.D.C. 2012). Both WildEarth 

and the PRBRC timely appealed. 

II 

A. Standing 

We begin with standing. See Steel Co. v. Citizens for a 

Better Env’t, 523 U.S. 83, 94–95 (1998). The party invoking 

federal jurisdiction bears the burden of establishing the 

elements of Article III standing: 

First, the plaintiff must have suffered an injury in 

fact—an invasion of a legally protected interest which 

is (a) concrete and particularized, and (b) actual or 

 2

 We note that, although the Appellants’ claim may not have 

been ripe when first pursued in district court, it has since ripened 

because leases have been issued to Antelope Coal for the tracts. 

Recording of Oral Argument at 9:40 (Nov. 18, 2013); see Ctr. for 

Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 480–82 

(D.C. Cir. 2009). 
8 

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 traceable to the challenged action of the 

defendant, and not the 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, 560–61 (1992) 

(citations, quotation marks and alterations omitted); accord 

Texas v. EPA, 726 F.3d 180, 198 (D.C. Cir. 2013). “[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 are germane 

to the organization’s purpose; and (c) neither the claim asserted 

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 (1977); accord Am. Trucking 

Ass’ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 

243, 247 (D.C. Cir. 2013), petition for cert. filed, 82 U.S.L.W. 

3259 (U.S. Oct. 17, 2013) (13-509). We have little difficulty 

concluding that the latter two elements of associational 

standing are met here and focus on whether the members of 

WildEarth or the PRBRC would otherwise have standing to 

sue in their own right. 

 As we discuss in Section II.B, infra, the Appellants claim 

that the BLM failed to adequately consider several 

environmental concerns, including the increase in local 

pollution and global climate change caused by future mining, 

before authorizing the leasing of the West Antelope II tracts. 

Their claim describes the “archetypal procedural injury”—an 

agency’s failure to prepare (or adequately prepare) an EIS 

before taking action with adverse environmental 

consequences. Nat’l Parks Conservation Ass’n v. Manson, 
9 

414 F.3d 1, 5 (D.C. Cir. 2005); see Defenders of Wildlife, 504 

U.S. at 572 & n.7. Although we relax the redressability and 

imminence requirements for a plaintiff claiming a procedural 

injury, “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, 497 (2009); 

accord Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 15 

(D.C. Cir. 2011). A procedural injury claim therefore must be 

tethered to some concrete interest adversely affected by the 

procedural deprivation: “[A] procedural right in vacuo . . . is 

insufficient to create Article III standing.” Summers, 555 U.S. 

at 496.

 The procedural injury the Appellants claim—the allegedly 

deficient FEIS—is tied to their respective members’ concrete 

aesthetic and recreational interests. “[E]nvironmental 

plaintiffs adequately allege injury in fact when they aver that 

they use the affected area and are persons ‘for whom the 

aesthetic and recreational values of the area will be lessened’ 

by the challenged activity.” Friends of the Earth, Inc. v. 

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) 

(quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). In 

support of their summary judgment motion, the Appellants 

submitted affidavits from several of their members attesting to 

those members’ aesthetic interests in the land surrounding the 

West Antelope II tracts and specific plans to visit the area 

regularly for recreational purposes. We agree that, as the 

district court found and the parties do not dispute, the affidavits 

suffice to show that some of the Appellants’ members will be 

injured by the increase in local air, water and land pollution 

that will result from mining on the West Antelope II tracts. 

See Friends of the Earth, 528 U.S. at 181–83; Defenders of 

Wildlife, 504 U.S. at 562–64. 

 As for causation, in a case alleging a procedural 

deficiency, “an adequate causal chain must contain at least two 
10 

links: one connecting the omitted EIS to some substantive 

government decision that may have been wrongly decided 

because of the lack of an EIS and one connecting that 

substantive decision to the plaintiff’s particularized injury.” 

Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 668 (D.C. Cir. 

1996) (en banc); see also Defenders of Wildlife v. Perciasepe, 

714 F.3d 1317, 1323 (D.C. Cir. 2013) (causation requirement 

not relaxed). The first link does not require the plaintiff to 

show that but for the alleged procedural deficiency the agency 

would have reached a different substantive result. See City of 

Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1186 (D.C. Cir. 

2007); Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 

1160 (D.C. Cir. 2005). “All that is necessary is to show that 

the procedural step was connected to the substantive result.” 

Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (quoting 

Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 

94–95 (D.C. Cir. 2002)); accord Defenders of Wildlife, 504 

U.S. at 572 n.7. But a plaintiff “must still demonstrate a 

causal connection between the agency action and the alleged 

injury.” City of Dania Beach, Fla., 485 F.3d at 1186; accord 

Ctr. for Law & Educ., 396 F.3d at 1160; see also Fla. Audubon 

Soc’y, 94 F.3d at 664–65 (“[A] procedural-rights plaintiff must 

show not only that the defendant’s acts omitted some 

procedural requirement, but also that it is substantially 

probable that the procedural breach will cause the essential 

injury to the plaintiff’s own interest.”). We think the 

Appellants have done so here because the local pollution that 

causes their members’ aesthetic and recreational injuries 

follows inexorably from the decision to authorize leasing on 

the West Antelope II tracts. 

The relaxed redressability requirement is also satisfied. 

See Ctr. for Law & Educ., 396 F.3d at 1160 & n.2 (discussing 

relationship between causation and redressability); Fla. 

Audubon Soc’y, 94 F.3d at 668 (first causal link “foreshadows” 
11 

redressability). Vacatur of the BLM order would redress the 

Appellants’ members’ injuries because, if the BLM is required 

to adequately consider each environmental concern, it could 

change its mind about authorizing the lease offering. See 

Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008); City of 

Dania Beach, Fla., 485 F.3d at 1186. We therefore conclude 

that the Appellants have standing to challenge the procedural 

inadequacy of the BLM’s decision—namely, the alleged 

deficiencies in the FEIS—based on their members’ aesthetic 

and recreational injuries caused by local pollution. 

The district court used this analysis insofar as it applied to 

the Appellants’ argument that the BLM failed to adequately 

address local pollution. WildEarth Guardians, 880 F. Supp. 

2d at 86–87. The court went on, however, to address 

separately their standing to argue that the FEIS failed to 

adequately address the impact of the leasing decision on global 

climate change. Id. at 83. It found they lacked standing to 

raise the argument because they could not demonstrate a link 

between their members’ recreational and aesthetic interests, 

“which are uniformly local, and the diffuse and unpredictable 

effects of [greenhouse gas] emissions.” Id. at 84. The 

district court therefore seemed to require that the specific type 

of pollution causing the Appellants’ aesthetic injury—here, 

local pollution—be the same type that was inadequately 

considered in the FEIS. In this respect, we think it sliced the 

salami too thin. Cf. Duke Power Co. v. Carolina Envtl. Study 

Grp. Inc., 438 U.S. 59, 78–79 (1978) (rejecting contention that, 

excepting taxpayer suit, plaintiff who has otherwise 

established elements of Article III standing must also 

demonstrate nexus between right asserted and injury alleged). 

In Center for Biological Diversity v. U.S. Department of 

Interior, environmental groups challenged Interior’s decision 

to expand leasing areas for oil and gas development off the 

coast of Alaska. 563 F.3d 466 (D.C. Cir. 2009). We 
12 

concluded that the petitioners had satisfied neither the injury in 

fact nor the causation requirements of standing based on their 

claim that expanded drilling would contribute to global climate 

change which in turn would threaten their members’ 

enjoyment of the area and indigenous animal species. Id. at 

475–79; see also Wash. Envtl. Council v. Bellon, 732 F.3d 

1131, 1141–46 (9th Cir. 2013) (finding no causal link between 

regulatory failure and assumed injury from climate change). 

We think (and the Appellants do not dispute) that the 

Appellants likewise cannot establish standing based on the 

effects of global climate change. But they have established a 

separate injury in fact not caused by climate change—the harm 

to their members’ recreational and aesthetic interests from 

local pollution. In Center for Biological Diversity, we noted 

that “Interior’s adoption of an irrationally based Leasing 

Program could cause a substantial increase in the risk to” 

petitioners’ similar aesthetic injury—“their enjoyment of the 

animals affected by the offshore drilling”—and held that this 

gave petitioners standing to challenge the decision to authorize 

the leasing even though the claimed deficiencies concerned 

Interior’s failure to consider greenhouse gas emissions and 

global climate change. 563 F.3d at 479. The same reasoning 

applies here. The Appellants’ aesthetic injury follows from 

an inadequate FEIS whether or not the inadequacy concerns 

the same environmental issue that causes their injury. If we 

vacate the BLM order, their injury will be redressed regardless 

whether the FEIS’s specific flaw relates to local or global 

environmental impacts; either way, the remedy is “limited to 

the inadequacy”—here, a deficient FEIS—“that produced the 

injury in fact that the plaintiff has established.” 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006) 

(quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)). 

This Court once held that “having established standing to 

challenge the adequacy of the FEIS on at least one ground, 
13 

[plaintiffs] are entitled to raise other inadequacies in the FEIS.” 

Sierra Club v. Adams, 578 F.2d 389, 392 (D.C. Cir. 1978). 

We rested this statement on the premise that a plaintiff may 

invoke “the ‘public interest’ in requiring government officials 

to discharge faithfully their statutory duties under NEPA.” Id.

at 392; see also Morton, 405 U.S. at 737. We express no 

opinion on whether the “public interest” rationale remains 

cognizable in light of subsequent Supreme Court precedent. 

See, e.g., DaimlerChrysler, 547 U.S. at 351–53 (rejecting 

“commutative” theory of standing whereby standing as to one 

claim would suffice for all claims arising from same nucleus of 

operative fact); see also id. at 353 n.5 (distinguishing Adams

from case at bar but expressing no opinion on its validity); 

Lewis, 518 U.S. at 358 n.6 (where injunction requiring 

provision of certain services to inmates concerned 

inadequacies other than those that harmed plaintiffs, noting 

that “standing is not dispensed in gross. If the right to 

complain of one administrative deficiency automatically 

conferred the right to complain of all administrative 

deficiencies, any citizen aggrieved in one respect could bring 

the whole structure of state administration before the courts for 

review.”). We rest our holding on a different rationale. The 

Appellants may challenge each of the alleged inadequacies in 

the FEIS because each constitutes a procedural injury 

connected to their members’ recreational and aesthetic 

injuries: Their members’ injuries are caused by the allegedly 

unlawful ROD and would be redressed by vacatur of the ROD 

on the basis of any of the procedural defects identified in the 

FEIS. 3 Contrary to the BLM’s assertion, the Appellants 

 3 The familiar principle that a plaintiff must demonstrate 

standing for each form of relief sought, see Summers, 555 U.S. at 

493; DaimlerChrysler, 547 U.S. at 352, is not to the contrary. The 

Appellants seek only one type of relief relevant here—the vacatur of 

the BLM’s leasing decision. They simply advance several 
14 

adequately raised their theory of procedural injury below and 

we therefore conclude that they have standing to challenge 

each of the alleged deficiencies in the FEIS. 

B. The Merits 

We apply the arbitrary and capricious standard of the 

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., to the 

merits of the Appellants’ NEPA and FLPMA challenges and 

review de novo the district court’s grant of summary judgment. 

Theodore Roosevelt I, 616 F.3d at 507; Nevada v. Dep’t of 

Energy, 457 F.3d 78, 87 (D.C. Cir. 2006); see 5 U.S.C. 

§ 706(2)(A). In doing so, we are mindful that our role is not to 

“ ‘flyspeck’ an agency’s environmental analysis, looking for 

any deficiency no matter how minor.” Nevada, 457 F.3d at 

93. Rather, it is “simply to ensure that the agency has 

adequately considered and disclosed the environmental impact 

of its actions and that its decision is not arbitrary or 

capricious.” City of Olmsted Falls, Ohio v. FAA, 292 F.3d 

261, 269 (D.C. Cir. 2002) (quoting Balt. Gas & Elec., 462 U.S. 

at 97–98). In short, “an agency must take a ‘hard look’ at the 

environmental effects of its proposed action.” Theodore 

Roosevelt Conservation P’ship v. Salazar (Theodore Roosevelt 

II), 661 F.3d 66, 75 (D.C. Cir. 2011); accord Balt. Gas & Elec., 

462 U.S. at 97. While the Appellants raise numerous 

challenges to the sufficiency of the FEIS, we find none has 

merit and consider only two worthy of discussion. 

1. Global Climate Change 

We turn first to the Appellants’ argument that the BLM 

did not take a hard look at the effect of its leasing decision on 

 

arguments in support of that claim. Cf. Am. Petroleum Inst. v. EPA, 

72 F.3d 907, 911–12 (D.C. Cir. 1996). 
15 

global climate change.4 In the FEIS, the BLM discussed at 

length the prevailing scientific consensus on global climate 

change and coal mining’s contribution to it. The BLM 

estimated the greenhouse gas (GHG) emissions that occurred 

at the Antelope Mine in 2007 and projected emissions for a 

typical year of operations if the West Antelope II tracts are also 

leased. It projected that, with the addition of the West 

Antelope II tracts, Antelope Mine would account for only .63 

per cent of state-wide emissions of carbon dioxide equivalent 

(CO2e). At the same time, the BLM noted that several factors 

made any projection about future emissions speculative. 

First, the BLM does not authorize mining through the issuance 

of a coal lease; rather, a mining permit must be obtained from 

the Wyoming Department of Environmental Quality with 

oversight from an independent federal agency, the Office of 

Surface Mining, and therefore mitigation measures can be 

imposed at a later stage. Joint Appendix (JA) 422–23; see 30 

U.S.C. §§ 1253, 1273(c). The BLM further assumed that 

mining would continue at existing production rates and the 

coal would continue to be used to generate electricity by 

coal-fired power plants. Finally, the BLM identified 

considerable uncertainty about regulatory and technological 

developments that could affect future emissions. 

 4

 The district court did not reach this issue and the Appellants 

therefore ask us to remand. The parties have briefed the issue, 

however, and at argument the Appellants indicated they have little 

more to add. The agency record is before us, our review of the 

district court’s decision post-remand would be de novo and we think 

the merits of the issue are clear. Indeed, the only purpose served by 

remand would be to satisfy the Appellants’ evident desire to delay 

mining on the West Antelope II tracts. We think it appropriate to 

resolve the issue now. See Friends of Blackwater v. Salazar, 691 

F.3d 428, 434 n.* (D.C. Cir. 2012). 
16 

The Appellants allege several inadequacies in the BLM 

analysis but they are of the flyspecking variety. First, they 

contend that the BLM’s estimate of Antelope Mine’s 

contribution to state-wide emissions failed to incorporate an 

analysis of the impact of these emissions, particularly their 

cumulative impact together with emissions from eleven other 

pending lease applications in the Powder River Basin. We 

think the BLM satisfied its obligation to consider “the 

incremental impact of the action when added to other past, 

present, and reasonably foreseeable future actions.” 40 

C.F.R. § 1508.7; see TOMAC, 433 F.3d at 864. The BLM 

quantified average CO2 or CO2e emissions for the Antelope 

Mine, for Wyoming and for the United States. From these 

figures it quantified the Antelope Mine’s contribution to 

state-wide CO2e and nation-wide CO2 emissions and the 

Wyoming Powder River Basin’s contribution to nation-wide 

CO2 emissions. It also projected Antelope Mine’s 

contribution to state-wide emissions going forward. Although 

it did not discuss specific global impacts that would result from 

additional emissions, the BLM explained that “[g]iven the state 

of the science, it is not possible to associate specific actions 

with the specific global impacts such as potential climate 

effects.” JA 891. This conclusion is supported by draft 

guidance from the Council on Environmental Quality (CEQ).5

 

See JA 1281 (“[I]t is not currently useful for the NEPA analysis 

to attempt to link specific climatological changes, or the 

environmental impacts thereof, to the particular project or 

emissions, as such direct linkage is difficult to isolate and to 

understand. The estimated level of GHG emissions can serve 

 5

 The CEQ promulgates regulations that implement NEPA. 

See 40 C.F.R. § 1500.1; see also Robertson, 490 U.S. at 355 (CEQ 

regulations “are entitled to substantial deference”). As the BLM 

concedes, the draft guidance is not an authoritative interpretation of 

NEPA’s requirements entitled to deference but nevertheless we find 

it useful. 
17 

as a reasonable proxy for assessing potential climate change 

impacts, and provide decision makers and the public with 

useful information for a reasoned choice among alternatives.”). 

Because current science does not allow for the specificity 

demanded by the Appellants, the BLM was not required to 

identify specific effects on the climate in order to prepare an 

adequate EIS. 

As for consideration of the eleven other pending lease 

applications, the Appellants have not shown that approval of 

the applications was “reasonably foreseeable.” Granted, 

when WildEarth filed its brief in the district court in 2011, it 

asserted that the eleven lease applications “certainly qualify as 

‘reasonably foreseeable future actions,’ given that BLM has 

already prepared EISs for all of these leases, recently held a 

sale for one lease, recently issued RODs for three leases, and 

has four RODs currently pending.” JA 57 (WildEarth brief in 

district court); see also JA 989 (listing eleven applications). 

But hindsight is 20-20. In December 2008, when the BLM 

issued the FEIS, it had issued drafts EISs for only four of the 

eleven leases; seven had not passed the “scoping” stage. See 

http://www.blm.gov/wy/st/en/programs/energy/Coal_Resourc

es/PRB_Coal/lba_title.html (last visited December 15, 2013). 

Because “projects in their infancy have uncertain futures,” it 

was neither arbitrary nor capricious for the BLM to omit the 

eleven proposed leases from its analysis of reasonably 

foreseeable future actions. Theodore Roosevelt I, 616 F.3d at 

513. (Hindsight bears this out: Although five of the leases 

have now been sold, one was rejected and five are either 

pending or have been suspended. See http://www.blm.gov/ 

wy/st/en/programs/energy/Coal_Resources/PRB_Coal/lba_titl

e.html (last visited December 15, 2013)). Instead of 

assuming, as the Appellants do, that every pending lease 

application will be approved, the BLM evaluated GHG 

emissions as a percentage of state- and nation-wide emissions. 
18 

We think this approach suffices. See Mayo Found. v. Surface 

Transp. Bd., 472 F.3d 545, 555–56 (8th Cir. 2006) (modeling 

of emissions on both regional and national levels sufficient if 

local modeling infeasible and requirements of 40 C.F.R. 

§ 1502.22(b) satisfied); see also Morris v. NRC, 598 F.3d 677, 

693 (10th Cir. 2010) (FEIS need not quantify amount of 

radiation emitted from other sources if it considered effect of 

radiation from past mining and proposed operation and 

determined that issuance of new license would have only 

negligible effect on amount of radiation emitted). 

The Appellants also argue that the BLM failed to analyze a 

reasonable range of alternatives to address GHG emissions and 

climate change. The BLM discussed five separate 

alternatives in the FEIS at length, however, and analyzed the 

environmental impact of each. The Appellants nevertheless 

protest that the FEIS did not adequately consider a list of 

alternative ideas that WildEarth submitted in a single 

paragraph in response to the FEIS. We sense a bit of 

sandbagging here. The PRBRC participated in the scoping 

hearing that preceded the draft EIS and submitted written 

comments on the draft EIS and WildEarth submitted written 

comments on the draft EIS that specifically addressed the 

draft’s discussion of reasonable alternatives. At no point did 

either WildEarth or the PRBRC mention the list of alternatives 

WildEarth raised at the last minute. To be sure, the BLM 

invited written comments on the FEIS, see 40 C.F.R. 

§ 1503.1(b), and it had the opportunity to respond before it 

issued the ROD. But WildEarth’s final comments did not 

really respond to the FEIS; instead, they raised new issues. 

We generally apply a deferential “rule of reason” to govern 

“both which alternatives the agency must discuss, and the 

extent to which it must discuss them,” Citizens Against 

Burlington, 938 F.2d at 195 (emphasis in original) (quotation 

marks omitted); see also Nevada, 457 F.3d at 93, and we think 
19 

the last-ditch, kitchen-sink nature of WildEarth’s suggestions 

bears on the extent to which the BLM was required to address 

them. See Vt. Yankee, 435 U.S. at 553–54 (“[A]dministrative 

proceedings should not be a game or a forum to engage in 

unjustified obstructionism by making cryptic and obscure 

reference to matters that ‘ought to be’ considered and then, 

after failing to do more to bring the matter to the agency’s 

attention, seeking to have that agency determination vacated 

on the ground that the agency failed to consider matters 

‘forcefully presented.’ ”). The BLM responded to 

WildEarth’s comments by referring WildEarth to the portion of 

the FEIS that does address a full range of alternatives and 

reminding WildEarth that the BLM does not issue mining 

permits and therefore further alternatives could also be 

addressed at the permitting stage. We think the BLM acted 

reasonably by responding in this manner. We therefore agree 

with the IBLA that the BLM satisfied its obligations under 

NEPA to consider climate change. See Powder River Basin 

Resource Council, 180 IBLA at 134. 

2. Local Pollution 

Next we consider the Appellants’ argument that the BLM 

failed to take a hard look at the effect the lease developments 

would have on local ozone levels. Ground level ozone is a 

pollutant that forms when emissions of nitrogen oxides (NOx) 

and volatile organic compounds react to sunlight. There are 

several types of NOx, the most toxic being nitrogen dioxide 

(NO2). Inhalation of ground level ozone is associated with 

several health risks, which the FEIS discussed. While the 

EPA has established National Ambient Air Quality Standards 

(NAAQS) for ozone and NO2, see Coal. for Responsible 

Regulation, Inc. v. EPA, 684 F.3d 102, 132 (D.C. Cir. 2012), 

cert. granted in part 134 S. Ct. 418 (2013), there is no 

corresponding NAAQS for NOx. 
20 

In the FEIS, the BLM noted that the area around the West 

Antelope II tracts is in attainment—i.e., in compliance with 

NAAQS—for all pollutants. JA 496, 789; see 42 U.S.C. 

§ 7407(d)(1)(A)(ii); see also JA 932 (responding to comment 

regarding compliance with ozone NAAQS). The BLM 

projected that by 2010 emissions of NO2 would remain well 

below NAAQS; further, the FEIS included an extensive 

discussion of the current and projected emissions of NOx and 

NO2. See JA 510–17; JA 680–81.6

 The projection of NO2

emissions was based on modeling done for the Powder River 

Basin Coal Review, “a regional technical study . . . to help 

evaluate the cumulative impacts of coal and other mineral 

development in the PRB.” JA 648; see JA 678. No separate 

projection, however, was made for ozone. As the BLM 

explained, it addressed ozone in its discussion of NOx

emissions because NOx is one of the main ingredients in the 

formation of ground level ozone and NO2, in turn, is a type of 

NOx. The BLM also noted that further modeling would be 

done at the permitting stage to ensure compliance with state 

and federal air quality standards. 

The Appellants’ objections to the BLM’s analysis boil 

down to a dispute about the adequacy of using projected 

emissions of ozone precursors—like NOx and NO2—as 

proxies by which to analyze the impact of future ozone levels. 

They point to one report in the record observing that there is 

not a one-to-one correlation between NOx and ozone levels 

 6

 We agree with the Appellants that the BLM’s interchangeable 

use of the terms NOx and NO2 can be confusing, especially where it 

erroneously refers to a NAAQS for NOx. JA 514; see also BLM Br. 

31–32 (making same error). But we do not think one typo in a 

five-hundred page FEIS renders it insufficient where, as here, 

context makes the point clear. Cf. US Magnesium, LLC v. EPA, 630 

F.3d 188, 193 & n.3 (D.C. Cir. 2011) (typo irrelevant where meaning 

could be readily ascertained). 
21 

because ozone produced per molecule of NOx emissions varies 

considerably depending on local conditions. See JA 995. 

But the same report observed that “[o]zone can be reduced by 

controlling . . . NOx” and “[r]ural ozone is more sensitive to 

NOx controls,” JA 994, which observation tends to confirm the 

appropriateness of the BLM’s use of NOx as a proxy for ozone. 

The Appellants also rely on an email from a BLM air 

quality specialist opining on the adequacy of the FEIS. We 

are dubious of the email’s value, particularly because the BLM 

specialist began the email by noting that she had conducted “a 

very cursory review of the ROD” and was “not very familiar 

with the project and ha[d] not read the FEIS.” JA 1348; see 

WildEarth Guardians v. Nat’l Park Serv., 703 F.3d 1178, 

1186–87 (10th Cir. 2013) (emails from local or lower-level 

agency representatives expressing diversity of opinion “will 

not preclude the agency from reaching a contrary decision, so 

long as the decision is not arbitrary and capricious and is 

otherwise supported by the record”); cf. Nat’l Ass’n of Home 

Builders v. Defenders of Wildlife, 551 U.S. 644, 658–59 (2007) 

(inconsistent statements by agencies’ regional offices during 

early stages of review do not render decisionmaking process 

arbitrary and capricious where proper procedures are 

followed). In any event, the email did not suggest that it was 

inappropriate to rely on NOx models instead of modeling ozone 

separately. It merely stated that the reasons for the lack of 

ozone modeling should have been articulated better. JA 1348 

(“[T]he response should include a concise explanation of 

ozone modeling and its limitations . . . and why this pollutant 

was not modeled.”). The Appellants do not question the 

adequacy of the explanation for the absence of ozone 

modeling, however, only the use of NOx as a proxy. 

We conclude that the BLM satisfied its obligations under 

NEPA. “ ‘The NEPA process involves an almost endless 

series of judgment calls,’ and ‘the line-drawing decisions 
22 

necessitated by the NEPA process are vested in the agencies, 

not the courts.’ ” Duncan’s Point Lot Owners Ass’n, Inc. v. 

FERC, 522 F.3d 371, 376 (D.C. Cir. 2008) (quoting Coal. on 

Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C. Cir. 

1987)) (alterations omitted). It may have been possible or 

even prudent for the BLM to separately model future ozone 

levels but we think that, given the limitations on such modeling 

and the critical role NOx plays in ozone formation, the BLM’s 

projections and extensive discussion of NOx and NO2 

emissions suffice. 

We have considered—and rejected—the Appellants’ other 

arguments challenging the sufficiency of the FEIS and 

conclude that the FEIS complies with NEPA, the FLPMA and 

the MLA. We therefore affirm the district court’s grant of 

summary judgment to the defendants. 

 So ordered.