UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SIGNAL PEAK ENERGY, LLC,

Plaintiff,

v. Civil Action No. 24-cv-366 (TSC)

DEB HAALAND, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Signal Peak Energy, LLC, sued the Office of Surface Mining Reclamation and

Enforcement, the Department of the Interior, and several agency officials, alleging that they

violated the National Environmental Policy Act (“NEPA”) and the Administrative Procedure Act

(“APA”) by planning to complete the Environmental Impact Statement (“EIS”) for its coal mine

expansion after the statutory deadline expired. The Government moved to dismiss, arguing that

the case is not ripe and Plaintiff failed to state a claim. Plaintiff subsequently sought a

preliminary injunction, asking the court to require the Government to create a within-deadline

schedule for the EIS and ensure its compliance with that schedule. Several conservation groups

have moved to intervene. The court heard argument on the motions on July 8, 2024.

Having considered the record, the briefs, and oral argument, the court will GRANT in

part and DENY in part Defendants’ Motion to Dismiss, DENY in part the conservation groups’

Motion to Intervene; and DENY as moot Plaintiff’s Motion for a Preliminary Injunction.

Page 1 of 20 I. BACKGROUND

A. Legal Background

NEPA requires agencies to prepare environmental documents for most proposed final

agency actions.

(a). The environmental document required depends on the

proposed action’s potential effect on the environment. An agency must “issue an environmental

impact statement with respect to a proposed agency action . . . that has a reasonably foreseeable

significant effect on the quality of the human environment.”

§ 4336(b)(1). By contrast, if the

agency action “does not have a reasonably foreseeable significant effect on the quality of the

human environment,” the agency “shall prepare an environmental assessment.” Id. § 4336(b)(2).

If an agency determines an EIS is required, the government shall “develop a schedule, in

consultation with each cooperating agency, the applicant, and such other entities as the lead

agency determines appropriate for” its completion. Id. § 4336a(a)(2)(D). An EIS is generally

due “not later than the date that is 2 years after the sooner of” the date the agency determines an

EIS is necessary, “the date on which the agency notifies the applicant” that its application to

establish a right-of-way is complete, and the date the “agency issues a notice of intent.” Id.

§ 4336a(g)(1)(A). If, however, the agency “determines that it is not able to meet the deadline,” it

may “extend such deadline, in consultation with the applicant, to establish a new deadline that

provides only so much additional time as is necessary to complete such environmental impact

statement.” Id. § 4336a(g)(2).

NEPA grants the “project sponsor” a cause of action to “obtain review of an alleged

failure by an agency to act in accordance with an applicable deadline” upon “filing a written

petition with a court of competent jurisdiction.” Id. § 4336a(g)(3)(A). “If a court . . . finds that

an agency has failed to act in accordance with an applicable deadline, the court shall set a

schedule and deadline for the agency to act as soon as practicable.” Id. § 4336a(g)(3)(B). Page 2 of 20 B. Factual and Procedural Background

Plaintiff owns and operates the Bull Mountains No. 1 Mine, an underground coal mine in

Montana. Compl., ECF No. 1 ¶ 16. In 2012, Plaintiff applied to expand the mine. Id. ¶ 52.

This expansion—known as AM3—proposed mining federal, state, and private coal. Id. After

completing an environmental assessment, the Government concluded that AM3 would not have a

significant impact on the environment, id. ¶ 55, and therefore would not require an EIS. It

approved AM3, and mining commenced in 2015. Id. ¶¶ 56–57.

Several conservation groups, however, challenged AM3’s approval in Montana federal

court. Id. ¶ 58; see Mont. Elders for a Livable Tomorrow et al. v. Off. of Surface Mining et al.,

No. 15-cv-106-DWM (D. Mont.). During that litigation, the Government prepared two

additional environmental assessments, in 2018 and 2020, once again concluding AM3 would not

have significant impact on the environment and approving the expansion. Compl. ¶¶ 59–61.

Following plaintiffs’ successful appeal to the Ninth Circuit, the Government represented in a

December 2, 2022, district court hearing that an EIS would be required for AM3. Id. ¶¶ 62–65.

Plaintiff represents that December 2, 2022, is therefore the trigger date for the Government’s

two-year statutory deadline to complete the EIS. See id. ¶ 70; 42 U.S.C. § 4336a(g)(1)(A). After

significant back and forth over the EIS process and timeline, in February 2024, the Government

issued an EIS schedule that projected completion in late May 2026. Compl. ¶ 105. The

Government “did not consult with Signal Peak” regarding this new schedule. Id. ¶ 106.

The vacatur of AM3’s approval disrupted Plaintiff’s operations and mining plan. Id.

¶ 108. In response, Plaintiff applied for multiple amendments to its mining permit to access non-

federal coal in other areas of the mine. Id. ¶¶ 110–11. Plaintiff represented that this new mining

Page 3 of 20 plan will keep the mine operational through the end of 2025. See Tr. of Proceedings, ECF

No. 43 at 33:21–24.

Plaintiff also initiated this action on February 7, 2024, claiming the Government violated

NEPA and the APA by delaying the EIS and failing to act in accordance with the statutory

deadline. Compl. ¶¶ 113–22. The Government moved to dismiss, ECF No. 10, Plaintiff filed a

motion for a preliminary injunction, ECF No. 18, and several conservation groups filed a motion

to intervene, ECF No. 12.

II. LEGAL STANDARD

A. Motion to Intervene

Federal Rule of Civil Procedure 24 provides for two kinds of intervention—intervention

as of right and permissive intervention. Intervention as of right requires a court to allow

intervention upon: (1) a “timely motion”; (2) by a person or entity who “claims an interest

relating to the property or transaction that is the subject of the action,” and (3) who “is so

situated that disposing of the action may as a practical matter impair or impede the movant’s

ability to protect its interest.” Fed. R. Civ. P. 24(a)(2). Such a person or entity is not entitled to

intervene as of right, however, if “existing parties adequately represent” their interest in the

action. Id. Permissive intervention authorizes a court to allow intervention upon a “timely

motion” by a person or entity who “has a claim or defense that shares with the main action a

common question of law or fact.” Fed. R. Civ. P. 24(b)(1). “In exercising its discretion” to

permit intervention, “the court must consider whether the intervention will unduly delay or

prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).

Page 4 of 20 B. Motion to Dismiss

i. Federal Rule of Civil Procedure 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss any

claim for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). A live case or

controversy is critical to the court’s subject matter jurisdiction. Arizonans for Off. Eng. v.

Arizona,

(1997). In assessing a motion to dismiss, the court “accepts all of

the factual allegations in the complaint as true,” Jerome Stevens Pharms. Inc. v. FDA,

(D.C. Cir. 2005) (citation omitted), and construe the complaint “in the light most

favorable to” the non-moving party, Navab-Safavi v. Glassman,

(D.C. Cir.

2011). That said, because the court has “an affirmative obligation to ensure that it is acting

within the scope of its jurisdictional authority,” the “factual allegations in the complaint . . . will

bear closer scrutiny [than those allegations would] in resolving a 12(b)(6) motion for failure to

state a claim.” Grand Lodge of the Fraternal Ord. of Police v. Ashcroft,

, 13–

14 (D.D.C. 2001) (quotation marks and citation omitted). Moreover, the court need not accept

“legal conclusions that are cast as factual allegations.” Schmidt v. U.S. Capitol Police Bd.,

(D.D.C. 2011) (citation omitted).

ii. Federal Rule of Civil Procedure 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a

complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (citation omitted). In other words, the plaintiff must plead “factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

Page 5 of 20 misconduct alleged.”

(citation omitted). The court presumes the truth of the complaint’s

factual allegations, Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000), but

need not “accept as true a legal conclusion couched as a factual allegation,” nor “inferences

[that] are unsupported by the facts set out in the complaint,” Trudeau v. FTC,

(D.C. Cir. 2006) (citations omitted).

C. Motion for a Preliminary Injunction

A preliminary injunction is an “extraordinary and drastic remedy” that is “never awarded

as of right.” Munaf v. Geren,

, 689–90 (2008) (citations omitted). A movant must

demonstrate (i) a likelihood of success on the merits, (ii) a likelihood of irreparable harm absent

injunctive relief, (iii) that the balance of equities tips in their favor, and (iv) that an injunction is

in the public interest. Winter v. Nat. Res. Def. Councils, Inc.,

(2008). The

movant bears the burden of showing that “all four factors, taken together, weigh in favor of the

injunction.” Abdullah v. Obama,

(D.C. Cir. 2014) (quoting Davis v. Pension

Benefit Guar. Corp.,

(D.C. Cir. 2009)). To satisfy its burden, a movant

may rely on “evidence that is less complete than in a trial on the merits” so long as it is

“credible.” R.I.L–R v. Johnson,

(D.D.C. 2015) (citations omitted).

III. MOTION TO INTERVENE

A. Intervention Requires Standing

In this Circuit, proposed intervenors must demonstrate Article III standing. In Yocha

Dehe v. United States Department of the Interior,

, 430–32 (D.C. Cir. 2021), the D.C.

Circuit affirmed the district court’s denial of a motion to intervene because Yocha Dehe lacked

Article III standing. In doing so, the court explained that, to intervene as of right, “the movant

must demonstrate that it has standing under Article III of the U.S. Constitution.”

at 430

Page 6 of 20 (citation omitted). Concluding that Yocha Dehe lacked standing, the court declined to reach the

issue of permissive intervention. See

.

Yocha Dehe’s holding, however, is in tension with the Supreme Court’s decision in Little

Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania,

(2020) (“Little

Sisters”). There, the Court explained that “[a]n intervenor as of right must independently

demonstrate Article III standing if it pursues relief that is broader or different from the party

invoking a court’s jurisdiction,” but “inquiring into the” proposed intervenor’s standing is

improper if that intervenor seeks the same relief as a party with standing.

at 2379 n.6. But

Yocha Dehe—decided one year after Little Sisters—did not consider whether the proposed

intervenor sought the same relief as the existing parties or discuss Little Sisters. Although the

D.C. Circuit has not addressed this tension, this court is bound by the decision latest in time—

here, Yocha Dehe. See, e.g., Maxwell v. Snow,

(D.C. Cir. 2005) (even panels

of the D.C. Circuit are “bound to follow circuit precedent until it is overruled either by an en

banc court or the Supreme Court”); Henry J. Dickman, Note, Conflicts of Precedent,

, 1392 (2020) (“Both the Supreme Court and court of appeals precedents are vertical

with respect to the district court, and thus, the more directly applicable decision binds the district

judge.”).

“To establish standing under Article III, a prospective intervenor—like any party—must

show (1) injury-in-fact, (2) causation, and (3) redressability.” Fund for Animals, Inc. v. Norton,

, 732–33 (D.C. Cir. 2003). An entity can allege injury either by showing that the

challenged action harms its organizational interests (organizational standing), or by showing that

at least one of its members has individual standing (associational standing). The conservation

groups seek associational standing.

Page 7 of 20 An environmental organization may establish associational standing by demonstrating

that “(a) its members [or any one of them] would otherwise have standing to sue in their own

right; (b) the interests [the entity] 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.” United Food & Com. Workers Union Loc. 751 v. Brown Grp.,

(1996) (quoting Hunt v. Wash. State Apple Advert. Comm’n,

(1977)).

An injury in fact “must be ‘concrete, particularized, and actual or imminent.’” Clapper v.

Amnesty Int’l, USA,

(2013) (citation omitted). The imminence requirement

means that even if an injury has not yet occurred, it must be “certainly impending,”

(citation

omitted; emphasis in original), or there is a “substantial risk” of the harm occurring, N.Y.

Republican State Comm. v. SEC,

(D.C. Cir. 2019) (citation omitted).

“‘Allegations of possible future injury’ are not sufficient.” Clapper,

(citation

omitted; emphasis in original). Applying that framework, the D.C. Circuit has found an injury in

fact in several cases where entities have aesthetic and recreational interests in specific areas of

land or species that may be harmed by agency action. E.g., Am. Fuel & Petrochemical Mfrs. v.

EPA,

(D.C. Cir. 2019) (aesthetic and recreational interest in observing

whooping cranes); Ctr. for Biological Diversity v. EPA,

(D.C. Cir. 2017)

(“recreational, scientific, aesthetic, educational, moral, spiritual and conservation interests” in

“observing the Valley Elderberry Longhorn Beetle in its natural California habitat”); WildEarth

Guardians v. Jewell,

, 305–06 (D.C. Cir. 2013) (members had aesthetic interests in

the land surrounding West Antelope II tracts, where an agency had authorized mining that would

Page 8 of 20 increase “local air, water and land pollution”). But injury is not imminent if it rests on a

“speculative chain of possibilities.” Clapper,

.

Procedural statutory violations may also confer an injury in fact if “a statute grants a

person a statutory right and purports to authorize that person to sue to vindicate that right” and

the person has “been concretely harmed by” the violation. TransUnion LLC v. Ramirez,

(2021) (citation and emphasis omitted). In TransUnion LLC, the Supreme

Court explained that a Maine citizen whose land was polluted by a nearby factory would have an

injury in fact to sue the factory for violating environmental laws and damaging her property, but

a citizen in Hawaii would not, because the Hawaiian had not “suffered any physical, monetary,

or cognizable intangible harm traditionally recognized as providing a basis for a lawsuit in

American courts.”

at 2205–06.

Next, the causation or traceability element requires that a party be responsible for the

movant’s injury. See Lujan v. Defs. of Wildlife,

(1992). For example, in Reed

v. Goertz,

, 960 (2023), plaintiff’s injury—denial of access to evidence for DNA

testing—was traceable to defendant’s conduct because defendant was the state prosecutor who

denied plaintiff access to the evidence. By contrast, in California v. Texas,

,

2113–14 (2021), in which plaintiffs challenged the constitutionality of the minimum essential

coverage provision of the Affordable Care Act, the Court held that individual plaintiffs’ injury—

making payments necessary to carry the minimum essential coverage—was not traceable to the

statute because the statute had “no means of enforcement” if plaintiffs failed to comply.

In procedural violation cases, this second element of standing bears particular

importance. Am. Fuel & Petrochemical Mfrs.,

. A plaintiff “need not show that

a harm to a member ‘has in fact resulted from the [agency’s] procedural failures,’” but rather that

Page 9 of 20 “there is a ‘substantial probability’” that the challenged agency action caused plaintiff’s injury.

(citation omitted). This inquiry requires two causal links: one connecting the procedural

deficiency to the substantive agency action, and another connecting that substantive agency

action to plaintiff’s injury. Ctr. for Biological Diversity,

.

Finally, to allege redressability, a plaintiff must show that it is “substantially likely” that,

if it succeeds on the merits, the suit will result in “relief that directly redresses the injury

suffered.” Reed, 143 S. Ct. at 960 (citation omitted); see Barker v. Conroy,

(D.C. Cir. 2019) (plausibility standard). “The key word is ‘likely.’” West v. Lynch,

(D.C. Cir. 2017) (quoting Lujan,

). For example, in Reed, 143 S. Ct.

at 960, the Supreme Court concluded that plaintiff had standing because the state prosecutor was

“substantially likely” to “abide by . . . a court order” finding that his “justification” for

withholding the evidence violated due process. By contrast, in Lujan, 504 U.S. at 568–71, the

Court held that plaintiff could not show redressability because the “only” way to redress

plaintiff’s injury was for individual agencies to terminate funding of certain activities abroad

until they consulted on environmental impacts, but the agencies at issue were not parties to the

suit, and “any relief the [court] could have provided in this suit . . . was not likely to” result in

redress. Consequently, “unadorned speculation will not suffice to invoke the federal judicial

power.” Simon v. E. Ky. Welfare Rts. Org.,

(1976).

B. Conservation Groups Lack Standing

The conservation groups frame their injury in fact in two ways: (1) injury arising from

the Government’s alleged procedural violation of NEPA, and (2) injury arising from its interest

in the integrity of the EIS process and protecting the environment that is endangered by

Page 10 of 20 Plaintiff’s request that the AM3 EIS be completed by December 2024. Mot. to Intervene, ECF

No. 12 at 18–20. Neither allegation confers Article III standing.

i. Procedural injury

The conservation groups do not have an injury in fact arising from the alleged NEPA

violation at issue here. Plaintiff alleges that the Government has violated NEPA by failing to

“act in accordance with” the two-year deadline to complete the EIS. Compl. ¶¶ 114–22; see 42

U.S.C. § 4336a(g). NEPA provides the “project sponsor” a cause of action to review “an alleged

failure by an agency to act in accordance with” this deadline. 42 U.S.C. § 4663a(g)(3)(A). The

conservation groups do not contend they are the project sponsor. Consequently, they were not

authorized by Congress to “sue to vindicate” the project sponsor’s right to a timely EIS, and they

do not have an injury in fact arising from the alleged violation of that procedural provision. See

TransUnion LLC,

(citation omitted).

The conservation groups argue that they have a statutorily protected interest in the EIS at

issue in this case. Reply in Supp. of Mot. to Intervene, ECF No. 38 at 6–13. The issues of

whether an EIS will be conducted, or whether the Government will afford conservation groups

the required time to comment on a draft EIS, however, are not at issue here. The only procedural

provision at issue concerns the timeline for completing the EIS. That provision does not appear

to have been designed with conservation groups in mind, nor does the NEPA grant them a cause

of action to sue for alleged violations of it.

ii. The EIS process and the environment

The conservation groups do not have an injury in fact arising from their interests in the

environment and the EIS process either, because there does not appear to be any “actual or

imminent” harm to the environment or to the integrity of the EIS process, see Clapper, 568 U.S.

Page 11 of 20 at 409 (citation omitted). Their theory is that, if the court orders the Government to complete the

EIS on a shorter timeline, the Government may cut corners by either failing to comprehensively

review AM3’s potential environmental impacts or failing to give the public sufficient time to

review and comment on the draft EIS. To be sure, if the court orders the Government to move

up its timeline for completing the EIS by more than a year, the Government will need to rework

its timeline significantly. It is possible that this process could result in a less thorough

environmental review or less time for public comment. But a “possible future injury” is

insufficient to confer an injury in fact.

(citation omitted; emphasis in original). The

conservation groups have not identified a “certainly impending” injury,

(citation omitted;

emphasis in original), or even an injury there is a “substantial risk” will occur, N.Y. Republican

State Comm.,

(citation omitted).

The conservation groups’ arguments to the contrary are unpersuasive. First, they argue

that the Montana district court’s decision that they had standing to challenge the AM3 approval

is binding under collateral estoppel. Mot. to Intervene at 18. Not so. “Under collateral estoppel,

once a court has decided an issue of fact or law necessary to its judgment, that decision may

preclude relitigation of the issue in a suit on a different cause of action involving a party to the

first case.” Klayman v. Rao,

(D.C. Cir. 2022) (citation omitted). Although

this case involves some of the same parties as the Montana litigation, that court did not decide

the same “issue of fact or law” presented in this case. Rather, the Montana district court held

that the Montana Environmental Information Center—one of the conservation groups moving to

intervene here—had standing to challenge AM3’s approval because a member had “aesthetic,

personal, and recreational interests in the Bull Mountains” that would “certainly be lessened by

the proposed expansion of the mine.” Mont. Env’t Info. Ctr. v. U.S. Off. of Surface Mining, 274

Page 12 of

(D. Mont. 2017). The question in this case is whether the conservation

groups have an interest in the timeline for the EIS to be completed; not whether they have an

interest in the proposed expansion of the mine.

The conservation groups also conflate their interests with Plaintiff’s, arguing that this

case is premised on the “real-world consequences” for Plaintiff’s mine. Reply in Supp. of Mot.

to Intervene at 16. But the conservation groups’ interests are different from Plaintiff’s. Plaintiff

seeks to continue operating a mine and the conservation groups seek to protect the environment

and participate in the EIS process. Moreover, Plaintiff has already suffered real-world

consequences by recalibrating its mining plan and seeking additional mining permits. Compl.

¶¶ 108–11. Considering Plaintiff’s hardships does not support standing for the conservation

groups.

In sum, the conservation groups lack standing, and the court will therefore deny their

motion to intervene.

C. Amicus Status

The conservation groups request that, if the court denies their motion to intervene, it

consider them amici and convert their brief on the merits to an amicus brief. Reply in Supp. of

Mot. to Intervene at 24. The court will grant conservation groups’ request and grant leave to file

its opposition to Plaintiff’s motion for a preliminary injunction, ECF No. 23, as an amicus brief.

See Local Civil Rule 7(o).

IV. MOTION TO DISMISS

A. Constitutional Standing and Ripeness

The Government argues that the court lacks jurisdiction because the case is not ripe.

“Ripeness, while often spoken of as a justiciability doctrine distinct from standing, in fact shares

the constitutional requirement of standing that an injury in fact be certainly impending.” Nat’l Page 13 of 20 Treasury Emps. Union v. United States,

(D.C. Cir. 1996). Consequently,

“if a threatened injury is sufficiently ‘imminent’ to establish standing, the constitutional

requirements of the ripeness doctrine will necessarily be satisfied.”

; accord Am.

Petroleum Inst. v. EPA,

(D.C. Cir. 2012).

Unlike the conservation groups, Plaintiff seeks to establish organizational, rather than

associational standing. An entity may establish organizational standing if it alleges “concrete

and demonstrable injury to the organization’s activities—with the consequent drain on the

organization’s resources—constitut[ing] far more than simply a setback to the organization’s

abstract social interests.” Havens Realty Corp. v. Coleman,

(1982). In

Havens Realty, the Supreme Court found that plaintiff had alleged injury in fact by claiming that

defendant’s “steering practices have perceptibly impaired [the plaintiff’s] ability to provide

counseling and referral services for low- and moderate-income homeseekers.”

An entity’s

“abstract interest in a problem,” by contrast, “is insufficient to establish standing, ‘no matter how

longstanding the interest and no matter how qualified the organization is in evaluating the

problem.’” Am. Soc’y for Prevention of Cruelty to Animals v. Feld Ent., Inc.,

(D.C. Cir. 2011) (quoting Sierra Club v. Morton,

(1972)). To establish either

constitutional standing or ripeness, Plaintiff must allege an imminent injury to its activities and

compensatory drain on its resources.

Plaintiff’s procedural injury is sufficiently imminent to satisfy Article III. 1 In cases

where a plaintiff asserts a procedural injury, “courts have applied the imminence requirement to

1 Plaintiff claims it has already been injured by the Government’s failure to “act in accordance with” the December 2024 EIS deadline by setting a schedule that forecasts completion in 2026. Mem. in Opp’n to Mot. to Dismiss, ECF No. 14 at 11–14; see 42 U.S.C. § 4336a(g)(3). NEPA, however, requires only that the Government “complete” the EIS “not later than the date

Page 14 of 20 the procedural violation, not the discrete injury that might someday flow” from it. Nat’l

Treasury Emps. Union, 101 F.3d at 1430–31 (citing Lujan,

n.7). The procedural

violation at issue is the requirement that the Government create an EIS within two years. 42

U.S.C. § 4336a(g)(1); see supra n.1. The Government has created an EIS schedule that forecasts

completion in May 2026, but Plaintiff alleges the deadline is December 2, 2024. Compl. ¶¶ 6,

70. The Government has not indicated that it does not plan to follow this schedule, or that it

intends to complete the EIS by December 2, 2024, without a court order. See Tr. for Proceedings

at 54:2–7 (“the deadline” proposed in an EIS schedule typically only “gets extended”). And

imminence does not require “literal certainty.” N.Y. Republican State Comm.,

.

Here, there is a “substantial risk” of the Government’s anticipated procedural violation. See

Plaintiff also has alleged the necessary drain on its resources. Indeed, it has already

expended resources to compensate for the imminent procedural violation by obtaining a permit

to mine an additional area—AM6—to keep the mine operable through 2025. Tr. of Proceedings

at 33:21–24. Once AM6 is mined, however, Plaintiff’s operation will be in jeopardy and its

employees will be out of work unless it identifies additional areas to mine that do not involve

AM3 federal coal. See

at 31:11–34:19. Accordingly, Plaintiff has alleged an injury in fact as

an organization.

that is 2 years after” the triggering event. 42 U.S.C. § 4336a(g)(1)(A). The cause of action provision, which authorizes the project sponsor to sue for “an alleged failure by an agency to act in accordance with an applicable deadline,” id. § 4336a(g)(3)(A), does not provide a cause of action until the agency has allegedly failed to meet this two-year deadline. Moreover, because NEPA provides an EIS deadline, and the Government’s EIS schedule is not final agency action, infra at 19, the APA’s standard of review is inapplicable. See

(providing an APA cause of action for “final agency action for which there is no other adequate remedy in a court”).

Page 15 of 20 Plaintiff’s injury is also fairly traceable to the Government’s actions and may be

redressed by a favorable outcome in this case. Because much of AM3 contains patches of

federal coal, Plaintiff cannot continue to mine it until the Government completes the EIS. Thus,

there is a “substantial probability” that the imminent procedural violation will harm Plaintiff, see

Am. Fuel & Petrochemical Mfrs.,

(citation omitted), by forcing it to obtain

permits for new areas to mine or close its operation completely,

at 31:11–34:19. Moreover, it

is “substantially likely” that, if Plaintiff succeeds on the merits, the court will order “relief that

directly redresses the injury suffered” by requiring the Government to comply with the two-year

EIS deadline and enabling Plaintiff to move forward with mining AM3 within its anticipated

timeline. See Reed, 143 S. Ct. at 960 (citation omitted).

The Government disagrees, first arguing that Plaintiff’s injury is not imminent because

the potential procedural violation “is months away.” Mot. to Dismiss at 9 (citing Nat’l Treasury

Emps. Union,

). But the Government has no support for such a bright line rule.

In National Treasury Employees Union,

, the Court held that a challenge to the

Line Item Veto Act was not imminent because the veto power was “not only unexercised,” but

was “as yet unavailable,” and there was no appropriations bill subject to the veto pending before

Congress. This case is different because the Government is already on track to miss an EIS

deadline. Whether that deadline is days or months away may be relevant to the imminence

inquiry, but it is not itself dispositive.

The Government also argues that the harm Plaintiff has suffered is traceable not to the

Government’s actions, but to the Montana district court’s decision vacating the AM3 approval

after the Government agreed that an EIS was required. Reply in Supp. of Mot. to Dismiss, ECF

No. 20 at 2–4. This argument misstates Plaintiff’s allegations. Plaintiff contends that it

Page 16 of 20 recalibrated its mining plan after the Montana court decision with the understanding that the EIS

would be completed in December 2024, Compl. ¶¶ 84, 108–10, but then had to reevaluate its

plan upon learning the EIS was not projected to be completed until 2026, id. ¶¶ 105, 111. At the

motion to dismiss stage, the court must presume the truth of the factual allegations in the

Complaint. Sparrow,

; see supra Section II.B.ii.

B. Prudential Ripeness

Ripeness doctrine also contains a prudential component that encourages courts not to

prematurely decide “abstract disagreements” and to “protect the other branches” of government

“from judicial interference until their decisions are formalized and their ‘effects felt in a concrete

way by the challenging parties.’” Nat’l Treasury Emps. Union,

(citation

omitted). The D.C. Circuit applies a two-part test for prudential ripeness, asking (1) whether the

issues are fit for a judicial decision and (2) whether the parties will suffer hardship if the court

withholds consideration.

(citation omitted). The “fitness of an issue ‘depends on whether it

is purely legal, whether consideration of the issue would benefit from a more concrete setting,

and whether the agency’s action is sufficiently final.’” Am. Petroleum Inst.,

(citation omitted). Thus, under the fitness prong, courts “decline to review ‘tentative’ agency

positions.”

(citation omitted). In considering hardship, moreover, courts ask whether it

would be “immediate and significant.”

(citation omitted).

Applying this framework, the D.C. Circuit found the claims in American Petroleum

Institute prudentially unripe because the agency had proposed a new rule that would eliminate

aspects of the challenged rule.

. The Court reasoned that the proposed rule would

“narrow the legal issues involved” and “provide a more final and concrete setting for deciding

any issues left on the table.”

; accord Nat’l Treasury Emps. Union,

Page 17 of 20 (“[W]hile the broad legal theory . . . may be as complete as it ever will, the facts upon which its

resolution may depend are not ‘fully crystallized,’ nor do the [plaintiffs] feel their effects in a

concrete way.”). Regarding hardship, the Court concluded that although there was a possibility

of “some financial hardship,” plaintiff did not show “such a burden as to warrant a potentially

improvident decision of an otherwise unripe issue.” Am. Petroleum Inst.,

;

accord Nat’l Treasury Emps. Union,

(potential diversion of resources was

“light hardship”). By contrast, the Court concluded Wabash Valley Power Ass’n v. FERC,

(D.C. Cir. 2001), was prudentially ripe because the agency decision approving

the challenged merger was final and “the standards for assessing the Commission’s judgment”

were “clear and easy to apply.” Accord La. Pub. Serv. Comm’n v. FERC,

(D.C. Cir. 2008) (case ripe because agency decision was not “conditional”); Ctr. for Biological

Diversity v. EPA,

(D.C. Cir. 2013) (case ripe because pending agency rule

would not affect legal issue challenged and pollution would result in the interim if decision was

delayed).

This case is prudentially unripe. First, it is not yet fit for a judicial decision because a

critical fact is not fully crystallized: the Government has not yet missed the alleged EIS deadline.

Although it seems unlikely, the Government still could take the initiative to reconfigure its

schedule to meet the deadline or obtain Plaintiff’s consent to extend the EIS timeline, see 42

U.S.C. § 4336a(g)(2) (“A lead agency that determines it is not able to meet the deadline . . . may

extend such deadline, in consultation with the applicant.”). Consequently, if the court does not

decide the merits now, it “may never need to,” Nat’l Treasury Emps. Union,

.

Second, Plaintiff is not likely to suffer further hardship if the court defers its review until

the alleged EIS deadline elapses. Plaintiff has already expended resources to prepare for the

Page 18 of 20 likely event that the Government will not complete the EIS by December 2024, making further

hardship unlikely. See Tr. of Proceedings at 31:11–34:19; supra at 18. And even if Plaintiff

does expend some additional resources to account for the protracted litigation, those resources

are unlikely to present “such a burden as to warrant a potentially improvident decision of an

otherwise unripe issue.” Am. Petroleum Inst.,

.

Plaintiff disagrees on both prongs. Regarding fitness for review, it argues that the facts

are fully crystallized because “there are no facts to suggest that the agency has any intent to

shorten” the EIS schedule. Mem. in Opp’n to Mot. to Dismiss, ECF No. 14 at 17 (“Dismissal

Opp’n”). Although it may be unlikely that the Government will complete the EIS by December

2024, its current schedule is not the kind of final agency action that “mark[s] the consummation”

of the agency’s decisionmaking and is typically subject to immediate judicial review. See

Soundboard Ass’n v. FTC,

(D.C. Cir. 2018) (interpreting “final agency

action” under the APA); see also Wabash Valley Power Ass’n,

(final agency

action is fit for judicial decision).

Plaintiff relatedly contends that consulting with the Government to extend the deadline

under § 4336a(g)(2) would be “would be meaningless” because consultation “requires seeking

the opinion of another with an opportunity to affect the outcome,” which Plaintiff claims the

Government has not done and will not do going forward. Dismissal Opp’n at 17–18. It may be

that the Government—or Plaintiff—refuses to engage in good faith as the deadline nears. But

that does not undermine the fact that no deadline has passed, and the facts of this case will not be

“fully crystallized” until it has.

Plaintiff also argues that “existing harms will be exacerbated” without immediate relief.

Dismissal Opp’n at 16 (citing Compl. ¶¶ 108–12). But the paragraphs of the Complaint Plaintiff

Page 19 of 20 cites do not support its argument. Instead, those paragraphs explain how Plaintiff has already

modified its mining plan to keep the mine operational through 2025. Compl. ¶¶ 108–12. The

only allegation that mentions potential future harm addresses the possibility that the mine may

close or lay off workers if “market conditions materially worsen” before the EIS is complete or

the Government does not complete its EIS by the close of 2025, causing Signal Peak to run out

of surface to mine. Id. ¶ 112. Neither potential harm is likely to come to fruition in the next few

months.

Because the court concludes this case is not prudentially ripe, it will deny Plaintiff’s

motion for a preliminary injunction as moot.

V. CONCLUSION

For the foregoing reasons, the court will GRANT in part and DENY in part Defendants’

Motion to Dismiss, ECF No. 10; DENY in part the conservation groups’ Motion to Intervene,

ECF No. 12; and DENY as moot Plaintiff’s Motion for a Preliminary Injunction, ECF No. 18.

An Order will accompany this Memorandum Opinion.

Date: August 21, 2024

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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