Trump's push to ignore climate costs generates a backlash in court, slowing some projects

Oct. 4, 2017 4 AM PT

Reporting from WASHINGTON — There is little question that expansion of the Bull Mountain coal mine in Montana would help nudge the Earth’s temperature upward.

Under a plan supported by the Trump administration, the mine would yield 15 million tons of coal each year, which would send potent bursts of climate-warming emissions into the atmosphere as the coal is burned in power plants worldwide.

The White House has ordered federal agencies not to calculate the cost to society of coping with the extra global warming a project of that sort would cause.

The order was meant to keep projects like this mine moving forward. But the administration’s out-of-sight, out-of-mind approach to climate science has started backfiring in court.

The expansion at Bull Mountain has been blocked by a federal judge who ordered regulators to figure out the climate impact of the mine and what it might cost the economy, before moving any further in the approval process. The holdup now threatens coal jobs.

“The injunction has the potential to put as many as 160 people out of work,” Bradley Hanson, chief executive of Signal Peak Energy, the company that runs the mine, wrote in a recent court filing.

Other big energy projects, including even bigger coal mines and a major gas pipeline, are confronting similar barriers as a result of judges’ impatience with the administration’s resistance to even thinking about climate change. Federal law doesn’t allow officials to simply ignore climate impacts, the courts have begun to rule.

“The courts have been clear that if you are going to consider the economic benefits of a project, you have to consider the climate costs,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University. Those climate costs can quickly overshadow the economic benefits.

The Obama administration sought to estimate climate costs by directing federal agencies to calculate what officials referred to as the social cost of carbon. The rule required agencies to consider the impact of global warming in all big environmental decisions, using a formula that seeks to estimate the cost of effects as varied as lost days of work and school and potential spikes in asthma-related emergency room visits.

Agencies were supposed to consider the expense of having to use the air conditioning more when temperatures rise, as well as the potential savings from turning on the heat less.

In March, Trump ordered federal officials to scrap the whole thing.

The administration was trying to avoid the sort of result that the U.S. Forest Service encountered in 2015 when it tried to open up parts of the North Fork area of western Colorado to coal mining. Federal courts forced the agency to consider the project’s costs, and when officials grudgingly complied, they had to reveal that the project would probably be a net loser, costing the economy hundreds of millions of dollars — and possibly as much as $3 billion.

“These are the things the agencies want to sweep under the rug,” said Ted Zukoski, the attorney who sued the Forest Service over the Colorado permit for the environmental group Earthjustice. “They are afraid to be honest about the costs because they are huge.”

Even before Trump arrived, agencies were reluctant to embrace a formula that raised doubts about some of their decisions. All the projects getting disrupted in court now began during the Obama administration. But the White House then was working to push the bureaucracy along.

Now, by contrast, the administration is seeking to promote energy projects. But the decision to scrap the carbon accounting, done at the behest of fossil fuel companies and think tanks funded by them, has started to create new headaches for the very projects it was intended to help.

Plans for the Sabal Trail pipeline, which would send 1 billion cubic feet of natural gas daily from Alabama to central Florida, have been sidetracked after the Sierra Club and others sued over the refusal of regulators to inventory climate impacts. In August, the federal appeals court in Washington, D.C., admonished the Federal Energy Regulatory Commission for neglecting a legal obligation to catalog climate costs.

The reluctance of regulators to account for global warming also moved judges on the Denver-based U.S. 10th Circuit Court of Appeals last month to order the Bureau of Land Management to reconsider its decisions on coal leases in Wyoming’s Powder River Basin. The agency had argued that extending leases that account for 20% of the nation’s coal production would not contribute to warming because the same amount of coal would be mined someplace else if the leases were rejected.

“The Trump administration is not doing any favors to its agencies and their ability to bring energy projects to approval,” said Jason Schwartz, legal director at the Institute for Policy Integrity at New York University. “This issue is going to come up again and again.”

The administration does ultimately intend to calculate climate costs. But the formula it is developing is almost certain to peg the economic costs of greenhouse gases as far lower than the $45 per ton that the Obama administration estimated. Among those who have lobbied for such a change are the Competitive Enterprise Institute and the American Energy Alliance, groups prominent in the network of nonprofits funded by fossil fuel billionaires Charles and David Koch and their affiliates.

The groups, which dispute mainstream climate science, have charged that the Obama administration formula inflates the warming-associated economic costs of projects by more than 80%. Pursuing that view could plunge energy projects into yet more legal uncertainty.

Meantime, the demand for a robust accounting of climate costs is intensifying.

In Montana, where the Western Environmental Law Center managed to delay the expansion of the Bull Mountain mine, the summer wildfire season was brutal. Tourists had to be evacuated from Glacier National Park as fire encroached, and the air quality in Missoula County’s Seeley Lake dropped to hazardous levels. Residents had thought they were in the clear after a wet winter. But then came a new phenomenon in Montana: the flash drought.

Although Montana has always had wildfires, scientists attribute their increased frequency to warming. The state is warming faster than others, according to a new study led by the Montana Institute on Ecosystems, a project of the state’s public university. And the warming is disrupting Montana’s water systems, forests and agriculture, according to the report.

“This year was just horrendous,” said Harold Hoem, 80, a Missoulan who was a smokejumper fighting fires in the 1950s. Now, he is the president of Montana Elders for a Livable Tomorrow, one of the groups demanding the Trump administration account for the climate impacts of the local coal mining expansion. “There are a heck of a lot of people here who are now connecting the dots between fossil fuel burning and what we ended up with with these fires.”

“There are always people who want to deny things,” Hoem said. “But once it hits you, you sure become a believer quick.”

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