Amicus Brief — Kleppe v. Sierra Club

Biates: >

ED

APR 13 1976

MICHAEL RODAK, JR., CLERK |

Tuomas S. KLEppe, Secretary of the Interior, et al.,

Petitioners,

Vv.

SIERRA CLUB, et al.,

Respondents.

No. 75-561

AMERICAN ELECTRIC POWER SYSTEM, et al.,

v. Petitioners,

SIERRA CLUB, et al.,

Respondents.

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF

THE COMMONWEALTH OF VIRGINIA, AND THE

CUMBERLAND PLATEAU PLANNING DISTRICT

COMMISSION AS AMICI CURIAE

CUMBERLAND PLATEAU PLANNING COMMONWEALTH OF VIRGINIA

District COMMISSIO) ANDREW P. MILLER

RONALD J. peg od Attorney General

Attorney for Commission

810 - 18th Street, N.W. ye ht

Washington, D.C. 20006 General

JaMES E. RYAN, JR.

Deputy Attorney General

FREDERICK S. FISHER

Assistant Attorney General

J. THomas STEGER

Assistant Attorney General

Supreme Court Building

1101 East Broad Street

Richmond, Virginia 23219

Wus0m - Eras Perms Co.. inc. - Ra 7-6002 - Wasnimeton. 0. C. 20001

TABLE OF CONTENTS

DESCRIPTION AND INTEREST OF AMICI

Oe -

GEE wee

I.

II.

III.

A REGIONAL ENVIRONMENTAL STATE-

MENT IS NECESSARY TO ANALYZE THE

SOCIAL AND ECONOMIC EFFECTS OF THE

FULL NORTHERN GREAT PLAINS COAL

PRODUCTION ON THE APPALACHIAN

ng) OO aan

THE COMAPARATIVE ENVIRONMENTAL

EFFECTS OF WESTERN AND EASTERN

COAL PRODUCTION CAN BEST BE CON-

SIDERED IN A REGIONAL ENVIRONMENT-

AL IMPACT STATEMENT .................................

A REGIONAL ENVIRONMENTAL IMPACT

STATEMENT IS NECESSARY TO ANALYZE

THE RELATIVE COSTS OF EASTERN AND

GG OL EE

EE cepnccnncepnmeteneeecermntesenmntentiareeenmennnss stint

Page

12

TABLE OF CITATIONS

National Environmental Policy Act, Section 102

(2) (C), 42 U.S.C. 4832(2) (C) ..................-.-0c0--2-

Code of Virginia, Sections 2.1-63.5, 15.1-1403 et

Ce

Greater Coal Utilization, Joint Hearings before the

Senate Interior and Insular Affairs and Public

Works Committees, 94th Cong., 2d Sess. (1975) ..

Sulfur Content of United States Coal, Bureau of

Mines Information Circular 8312 .......................

Virginia Department of Labor and Industry An-

I Bs BI cteerirenictnniesniniennnttinenaiinititines

Charles River Associates, Inc., The Economic Im-

pact of Public Policy on the Appalachian Coal

Industry and the Economy, prepared for the

Appalachian Regional Commission, Washington,

D.C., 1973 ..... “

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-552

THOMAS S. KLEPPE, Secretary of the Interior, et al.,

Petitioners,

v.

SIERRA CLUB, et al.,

Respondents.

No. 75-561

AMERICAN ELECTRIC POWER SYSTEM, et al.,

Petitioners,

Vv.

SIERRA CLUB, et al.,

Respondents.

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF

THE COMMONWEALTH OF VIRGINIA, AND THE

CUMBERLAND PLATEAU PLANNING DISTRICT

COMMISSION AS AMICI CURIAE

2

The Commonwealth of Virginia, and the Cumberland

Plateau Planning District Commission (hereafter Cum-

berland) respectfully submit this brief as amici curiae

for consideration by this Court. Virginia and Cumber-

land support the position of respondents Sierra Club,

et al., and urge the Court to affirm the decision of the

United States Court of Appeals for the District of Co-

lumbia Circuit.

DESCRIPTION AND INTEREST OF AMICI CURIAE

Virginia is a major producer of eastern coal. The

Appalachian States, including West Virginia and Vir-

ginia, account for approximately two-thirds of the Na-

tion’s coal production. Final Environmental Impact

Statement, Proposed Federal Coal Leasing Program

(“Coal Programmatic EIS”), United States Department

of the Interior, p. 8-30. Eighty percent of the coal pro-

duced in Virginia is low in sulfur content, containing

less than one percent sulfur. Sulfur Content of United

States Coal, Bureau of Mines Information Circular 8312.

A large portion of the coal produced by the Appalachian

States is consumed by energy markets in the eastern

and midwestern United States.

Virginia is concerned that the action of the Federal

government in refusing to consider the overall nation-

wide impact of its coal-leasing activities will adversely

affect vital economic and social aspects of their environ-

ment. In southwestern Virginia coal production has been

the dominant industry for generations. For many rea-

sons, particularly cheaper sources of energy from do-

mestic natural gas and imported oil, the coal producing

areas in the Appalachian States have been in a very

depressed and impoverished cordition for many years,

and have been the object of considerable federal] efforts

to improve their economic situation. The present national

need for coal presents an opportunity for Appalachia to

advance economically as a major source of the nation’s

coal. The development of huge federal reserves of coal

in the west seriously threatens the economic foundation

of Appalachia, and this should be carefully considered in

any determination of the costs and benefits of such de-

velopment.’

The Cumberland Plateau Planning District Commis-

sion is an agency of local government created by the

governments of Buchanan, Dickenson, Russell and Taze-

well Counties in the southwest region of Virginia, pur-

suant to Virginia law. Code of Virginia, Sections 2.1-

63.5 and 15.1-1403, et seg., as amended. Its purpose is

to assure the orderly future development of the area. Its

staff engages in research and planning activities in or-

der to advise local governments as to the future eco-

nomic, social and environmental effects of their decisions.

This work is financed by funds received from participat-

ing local governments and through grants received from

Federal and State agencies. The Commission is a policy-

making body whose members are local officials appointed

by participating local governments.

The area served by the Cumberland Plateau Planning

District Commission accounts for 80 percent of the coal

produced in Virginia. The Commission is concerned that

the Federal government’s failure to consider the national

implications of its coal leasing decisions will have ad-

verse effects upon eastern coal producing areas and

that these effects will be felt most immediately and most

seriously at the local level.

1In addition, any curtailment in coal production will cause loss

of coal traffic carried by the railroads of the Appalachian region.

Coal represents the most important payload of these railroads and

has contributed to their relative prosperity. Without it, they may

suffer the fate of the northeastern railroads, to the great detriment

of the national transportation network.

4

ARGUMENT

Virginia and the Cumberland Commission urge the

Court to affirra the decision of the court below that Sec-

tion 102(2)(C) of the National Environmental Policy

Act, 42 U.S.C. 4332(2)(C), requires the Federal govern-

ment to prepare a comprehensive environmental impact

statement which will analyze the environmental effects

of intensive coal development in the Northern Great

Plains region and reasonable alternatives to that devel-

opment. Since the legal arguments in support of this

position are fully presented by respondents, amici will

not repeat these contentions. Instead, we will show that

substantial environmental issues of importance to us and

other eastern States and localities have not been ade-

quately considered in an environmental statement con-

cerning western coal development and can only be ade-

quately considered in an overall regional impact state-

ment.

I

A REGIONAL ENVIRONMENTAL STATEMENT IS

NECESSARY TO ANALYZE THE SOCIAL AND

ECONOMIC EFFECTS OF THE FULL NORTHERN

GREAT PLAINS COAL PRODUCTION ON THE AP-

PALACHIAN COAL REGION

Until very recently, the Department of the Interior,

which has responsibility for permitting the mining of

coal on federal lands, has taken the position that the

National Environmental Policy Act required no more

than environmental statements for particular mining

plans. Environmental statements were not even pre-

pared when leases were issued. The Department seems

now to have reconsidered its position. It has prepared

an environmental statement for a group of four coal

mines and a railroad line in the Eastern Powder River

Coal Basin of Wyoming which it describes as a regional

5

impact statement and has declared that it will hence-

forth prepare such “regional” statements for groups of

mines and related activities. In addition, it apparently

will analyze individual actions which have significant

effect on the environment. Nonetheless, it still refuses

to acknowledge that the many federal actions intended

to expand coal mining in the region are of such a scale

and nature as to constitute a federal program. These

actions, comprised of a multitude of decisions, will have

an enormous effect on areas of historic coal production

outside of the Northern Great Plains.

No environmental impact statement issued to date

has attempted to deal in any way with the total effect

which wholesale stripping of coal in the Northern Great

Plains will have, either within its region or outside of

it. The environmental impact statement on the entire

federal coal leasing program might have provided a

framework for an evaluaticn of the costs and benefits

of producing coal in various areas of the nation, but

it did not do so. Instead, that statement focused on

areas containing substantial quantities of federal coal,

which is not significant in Appalachia. In response to

public comment that the statement did not compare

eastern versus western coal development, the Department

of the Interior added a one-page analysis of this issue

which dismissed the potential effect on the eastern coal

regions from western coal development with the offhand

notation that cessation of federal leasing might help

reverse the process of economic decay which presently

plagues the Appalachian region (Coal Programmatic,

p. 8-31):

Continued or expanded eastern coal production will

have the effect of retaining established populations

in Appalachian communities. Existing lifestyles

will be perpetuated and current economic decay

would perhaps be reversed.

6

We submit that the economic fate of one of the his-

torically most depressed regions of the country requires

more than one page to apprise the decison-maker ade-

quately of the effect which accelerated leasing of west-

ern coal would have.*

The Department of the Interior has now taken the

position that the statement prepared for the Eastern

Powder River basin of Wyoming is a proper regional

statement, so that no analysis of broader scope need

be prepared. However, that statement does not deal

with questions of more than limited dimensions. In

particular, it does not deal with the impact which

massive development of the Northern Great Plains coal

fields will have on Virginia and the entire Appalachian

region. In discussing alternatives to full-scale coal leas-

ing in the Eastern Powder River Basin, that statement

briefly considers coal mining in Appalachia but concludes

that the effect of coal exports from the Eastern Powder

River “should be slight” and that “[a]ll producing mines

and mines now being developed both in Appalachia and

in the Eastern Powder River Basin have a ready market

for low-sulfur coal * * *.” Final Environmental Impact

Statement, Eastern Powder River Coal Basin of Wyo-

ming, pp. I-805 to 805a. The difficulty with this com-

parison is that Appalachia is not competing only with

Eastern Powder River coal. It is competing now or in

the near future with all of the massive coal production

forecast for the entire Northern Great Plains region.

Limiting the analysis to only one sub-region fatally re-

stricts the consideration and totally underestimates the

impact on Appalachia that mine after mine, sub-region

after sub-region, will have.

2 There are over 12,000 direct mining jobs in Virginia alone,

nearly all of them within the Cumberland Commission’s area. Vir-

ginia Department of Labor and Industry Annual Report, 1974, p. 85.

nnd

7

If present trends continue in Appalachia, one study

has concluded that the number of men employed in the

mines will be nearly halved by 1980. Charles River

Associates, Inc., The Economic Impact of Public Policy

on the Appalachian Coal Industry and the Regional

Economy, prepared for the Appalachian Regional Com-

mission, Washington, D.C., 1978. The effect which that

reduction in employment would have on this perma-

nently depressed region need not be described.

Amici submit that the National Environmental Policy

Act requires the Department of the Interior to weigh

these relative regional impacts on large-scale federal

coal development in the Northern Great Plains. The

full effect of coal development in the Northern Great

Plains on the eastern coal-producing states can only be

adequately analyzed and fairly considered by a regional

statement on the entire Northern Great Plains rather

than only a portion of it. We submit that an adequate

regional environmental statement is necessary to ensure

consideration of these important social, economic, and en-

vironmental issues in the Department’s decision-making

process, and that such consideration is essential to en-

able the decision-maker to understand the true costs of

the various alternatives.

THE COMPARATIVE ENVIRONMENTAL EFFECTS

OF WESTERN AND EASTERN COAL PRODUCTION

CAN BEST BE CONSIDERED IN A REGIONAL EN-

VIRONMENTAL IMPACT STATEMENT

Amici submit that a site-specific environmental impact

statement, however thoroughly it may weigh the im-

pact of a proposed action upon a specific area, is not

sufficient if it does not consider the vitally important

question whether the environmental] effects of similar

action elsewhere would be less damaging.

For example, environmental statements which the De-

partment of the Interior has prepared on mining plans

in the Northern Great Plains do not compare the effects

of strip mining on lands, vegetation and wildlife in

areas with little rainfall and poor soil with deep min-

ing or with strip mining in areas where reclamation

is substantially easier and more certain. It does not

compare the effect of coal production in the west on

that region’s land and water with the environmental

effects of coal production in the east. It does not com-

pare the environmental effects and the costs in resources

of moving coal or electricity long distances by rail, slurry

pipeline or transmission line with the environmental

effects and custs of transportation of coal or electricity

from areas near the point of consumption. It does

not compare the relative environmental effects on air

quality of using coal, often without sulfur control tech-

nology, in regions of extremely clean air against the

effects of using the best technology available with coal

of the same or somewhat higher sulfur content. It does

not consider the environmental effects of consuming large

amounts of energy and possibly of water in order to

move coal or electricity long distances.

The Department of the Interior sentions in its one-

page analysis of western versus eastern coal production

that (Coal Programmatic EIS, pp. 8-21 to 8-32):

Transportation systems and utilities are already

constructed much more extensively in the East than

in the West. As such, expansion of the eastern coal

industry would not require the degree of pioneer

construction (roads, railroads, pipelines, power) as

needed elsewhere. In summary, eastern coal de-

velopment would impact on less surface terrain

than western coal since it will be predominantly

underground mining.

The Department of the Interior’s position that it is not

required to prepare a comprehensive environmental im-

pact statement on its decision to award scores of coal

leases in the Northern Great Plains region effectively

means that it will not be able to weigh the relative

environmental and economic impacts which these brief

comments acknowledge exist as to transportation systems

and surface terrain in eastern and western coal mining

areas. In a time of capital shortage and national rail-

road problems, we submit that no federal decision-

maker can adequately weigh the costs and benefits of

this coal-leasing program without a full consideration

of these likely effects.

Amici submit that the National Environmental Policy

Act requires that these issues be subjected to more

than a mere comment. The relative environmental costs

of strip and surface mining, the relative impacts on

land, air and water resources, and the effects on energy

supplies of long-distance transportation are issues which

the Department of the Interior should consider care-

fully when it contemplates awarding scores of coal

leases in a region where geological, hydrological, and

climatic characteristics, and distances from potential

markets may cause far greater environmental harm

than would result from increased coal production in an-

other region.

III

A REGIONAL ENVIRONMENTAL IMPACT STATE-

MENT IS NECESSARY TO ANALYZE THE RELA-

TIVE COSTS OF EASTERN AND WESTERN COAL

None of the few environmental impact statements

which have been prepared concerning federal activities

in the Northern Great Plains have considered the ques-

tion whether western coal, which is generally much

lower in heat value than eastern coal, is actually cheaper

or more expensive than eastern coal when delivered

10

to the midwestern and eastern markets traditionally

served by eastern coal. Coal is more expensive to ship

than any other fuel; transportation costs account for

approximately 30 percent of the total delivered price.

Greater Coal Utilization, Joint Hearings before the

Senate Committees on Interior and Insular Affairs and

Public Works, 94th Cong. 2d Sess., p. 268 (1975). In

a society committed to energy conservation, the waste-

fulness of shipping western coal to eastern markets

when local coal is readily available is at best question-

able. See Telegram to the President from Senator Jen-

nings Randolph of West Virginia reproduced in Greater

Coal Utilization, supra, p. 1460.

The Department of the Interior states in the Coal

Programmatic Statement that “Eastern bituminous coal

* * * has a 35 percent greater heat value than western

subbituminous coal.” Coal Programmatic, p. 8-31. This

is the extent of its analysis. There is no consideration

of the effect of this considerable disparity in heat value

upon the relative costs of eastern and western coal

or on the relative costs of transporting equivalent

quantities of coal in terms of heat value.

It cannot be assumed that western coal is being

mined and shipped to the east and midwest because it

is cheaper. The Northern Great Plains Resources Pro-

gram Report (p. 32), which was recently issued by

various federal agencies including the Department of

the Interior, shows that strip-mined coal delivered by

train from the Northern Great Plains to Chicago, New

Orleans, Atlanta and other points farther east is more

expensive than Appalachian coal delivered to those points

from strip mines and even from underground mines.

Moreover, vast quantities of coal, including low sulfur

coal, are available in Appalachia, enough to supply all

needs east of the Mississippi for many decades to come.

11

It thus appears that the heavy emphasis by industry

on western coal may not be based on lower total costs

for western coal, or lack of adequate reserves in the

east, but rather on other factors such as the ease by

which coal companies can obtain large blocks of strip-

pable coal from the Federal government. It may also be

based on the fact that a “fuel adjustment clause” in the

tariffs of many utilities permits them to pass through all

increased fuel costs, including transportation costs, to

their consumers without necessitating a hearing before

a state utility commission. See Facts About Coal in the

United States, pp. 18-19, reprinted in Greater Coal

Utilization, supra, pp. 247-248.

These issues are plainly matters worthy of serious

study. A fair analysis of the effects of western coal

development on the economic, social, and environmental

character of Appalachia, as well as of the Northern

Great Plains, of the comparative environmental effects

of coal production on Appalachia and the Northern

Great Plains, of the comparative economic cost of coal

delivered in the eastern half of the country, both in price

per ton and in the effects it has on national investment,

transportation, and job development plans, might well

have a major impact on the decisions of the Secretary

of the Interior.

On the one hand, as respondents’ brief sets forth,

massive coal development of the Northern Great Plains

seriously threatens the environment of that region. On

the other hand, massive development of the Northern

Great Plains seriously threatens the economic and social

well-being of Appalachia and therefore the human en-

vironment in which its population lives. Moreover, it is

likely that western coal will be higher in price when

delivered to eastern and middle western markets than

low-sulfur Appalachian coal. A regional environmental

12

impact statement which adequately analyzed and pre-

sented these issues to the Secretary of the Interior

might well persuade him, at the very least, to limit the

scope of development in the west to a level which would

reduce the harm both to Appalachia and to the North-

ern Great Plains.

CONCLUSION

For the foregoing reasons, the Commonwealth of Vir-

ginia and the Cumberland Plateau Planning District

Commission urge the Court te affirm the decision of the

United States Court of Appeals for the District of Co-

lumbia Circuit.

Respectfully submitted,

CUMBERLAND PLATEAU PLANNING COMMONWEALTH OF VIRGINIA

District COMMISSION ANDREW P. MILLER

RONALD J. WILSON Attorney General

Attorney for the Commission

810 - 18th Street, N.W. yi,

Washington, D.C. 20006 General

JaMES E. RYAN, JR.

Deputy Attorney General

FREDERICK S. FISHER

Assistant Attorney General

J. THomas STEGER

Assistant Attorney General

Supreme Court Building

1101 East Broad Street

Richmond, Virginia 23219