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Otter Creek

Enviros file suit

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Last week a handful of environmental groups launched the first legal salvo in their attempt to stop the mining of a half billion tons of coal beneath the Otter Creek Valley in southeastern Montana—an amount that would nearly double the state's current annual coal production.

On May 12, the Northern Plains Resource Council and the National Wildlife Federation filed suit against the Montana Land Board arguing that the board's decision in March to lease 570 million tons of coal to Arch Coal, Inc. should have been preceded by adequate environmental review.

Then, on May 13, the Montana Environment Information Center (MEIC) and the Sierra Club filed suit alleging that the board failed to consider the mine's potential impacts on climate change.

"Our lawsuit and Northern Plains' lawsuit are essentially arguing on the same constitutional grounds," says Mike Scott of the Sierra Club's Beyond Coal Campaign. "But we're arguing that one of the things that needed to be considered before leasing the coal was its potential impacts on climate change."

Steve Running, University of Montana professor and Nobel Peace Prize-winning member of the Intergovernmental Panel on Climate Change, calculates the combustion of Otter Creek coal would result in about 2.5 billion tons of carbon dioxide emissions over the life of the mine, 50 times Montana's total current annual emissions.

Attorney Jenny Harbine of Earthjustice, the firm representing the Sierra Club and MEIC, explains that at the core of both lawsuits is an attempt to overturn the Montana Legislature's decision in 2003 to exempt such leases from Montana Environmental Policy Act review.

"We have challenged that exemption as a violation of the state's constitutional obligation to protect the environment from unreasonable degradation," she says.

Harbine says removing the exemption is crucial because the lease stage is when the state has the most authority to avoid or mitigate environmental impacts. It could, for example, attach conditions requiring that coal be sold to carbon-sequestering coal plants.

"If the elected officials on the Land Board are serious about limiting Montana's contribution to the global warming problem, then those are exactly the kinds of alternatives they should be considering," Harbine says. "Barring that, they should keep the coal in the ground."

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