Roadless?

In Western Colorado, just south of Somerset and east of Paonia, there is a tract of land within Gunnison National Forest that, despite the area’s history with coal mining, remains untouched by man and his machines. It is, in every sense, wilderness.

At first glance, the area appears to be heavily protected, first, by a federal Roadless Area Conservation Policy from 2001, as well as by a Jan. 14 announcement by the Obama administration that placed a moratorium on new leases for coal extraction on public lands. But as Colorado environmentalists have learned the hard way, nothing is guaranteed protection from energy companies in John Hickenlooper’s Colorado.

In the case of Gunnison National Forest lands in question, Gov. John Hickenlooper’s administration crafted a Colorado-specific rule that the federal government allowed to replace its own Roadless Area Conservation Policy and which left nearly 20,000 acres of untouched woodland in Western Colorado still vulnerable to mining operations.

When Interior Secretary Sally Jewell announced the federal pause on coal leasing on Jan. 14, the policy sounded straightforward: Coal companies will be able to continue to mine on existing leases, but no new leases will be awarded as the government launches a comprehensive review of the federal coal program, expected to take three years. The ultimate overhaul of the program could lead to increased costs for energy companies and a significant slowdown in extraction.

“We haven’t undertaken a comprehensive review of the program in more than 30 years, and we have an obligation to current and future generations to ensure the federal coal program delivers a fair return to American taxpayers and takes into account its impacts on climate change,” Jewell said via press release.

It looks clear to many folks — those in the industry as well as those pushing to shut it down — that the intent of the leasing pause is to keep coal in the ground.

But there are exemptions that mean the moratorium won’t prevent much new mining in Colorado, most notably in the untouched and highly controversial tract of land in Gunnison National Forest where coal company Arch Coal has been trying to expand its mining operations.

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Ostensibly, the federal Roadless Area Conservation Policy should protect this area of Gunnison National Forest, as well as Grand Mesa and Uncompahgre forests where there are known coal deposits. This federal “roadless” rule was enacted in 2001 by President Clinton to, at least theoretically, end all logging, road building, and coal, gas and oil mineral leasing in 58 million acres of undeveloped national forest land, which included about 4 million acres in Colorado.

Clinton enacted the rule at the 11th hour of his last term — a little more than a week before he left office — and the Bush administration was less than enthusiastic about the policy. Ted Zukoski, a staff attorney with Denver-based nonprofit environmental law organization Earthjustice, says that Coloradans worried, particularly when Bush was elected for his second term, that the federal law wouldn’t hold up, so the Hickenlooper administration used that fear to work with the U.S. Forest Service to craft a Colorado-specific roadless area conservation rule.

What emerged from that collaboration was less than protective for the state’s untouched national forests. Even so, Hickenlooper’s plan was allowed to become the law for the state instead of Clinton’s Roadless Area Conservation Policy which did, in fact, make it through court scrutiny and the Bush administration. Turns out there was no need for Hickenlooper’s plan B, but that is unfortunately what now governs much of the state’s still pristine federal lands.

“[They] give a little bit to coal, the ski industry, make sure log dividers can build where they want, we’ll have exceptions for power lines — every interest under the sun came in and said, ‘We want some roadless area,’” Zukoski says.

On July 3, 2012, the Colorado Roadless Rule became effective, creating a 19,500-acre exception dubbed the North Fork Coal Mining Area right in the middle of the Gunnison National Forest. A loophole, as Zukoski calls it.

“The [Colorado Roadless Rule] applies to 4.2 million acres of National Forest roadless areas within Colorado and conserves roadless area values for future generations, while providing for activities important to the citizens and economy of Colorado,” the Forest Service writes on their website.

“When you look at the analysis of what the Colorado Roadless Rule would do, it would permit more road construction in Colorado roadless areas,” Zukoski says. In his opinion, the reason so many more roads would be created, is that there were at least three or more locations in the North Fork Coal Mining Area that companies desired to develop including an expansion of Arch Coal’s West Elk Mine.

But mining never occurred in the North Fork Mining area, because in July 2013, High Country Conservation Advocates, WildEarth Guardians and Sierra Club challenged the exception, with Zukoski representing the environmental groups.

Flash forward to the Jan. 14 announcement that the federal government would pause leases on coal extraction on federal lands. Much like the Colorado Roadless Rule exception, this moratorium has its own allowances.

“The Secretary’s order specifically says that there will be no pause on those leases that have gone through [an] environmental [analysis] process and have been set aside in court and are being evaluated,” Zukoski says. “There’s only a couple of such leases in the country, and one of them is Arch Coal’s proposal to bulldoze on 1,700 acres of roadless forest … [in] this North Fork Coal Mining Area.”

Zukoski is familiar with the land; in June 2014, he served as the lead attorney in a multi-organizational lawsuit challenging Arch Coal’s desire to expand their West Elk Mine into the Sunset Roadless Area of Gunnison National Forest. Sunset, as mentioned earlier, is part of the North Fork Mining Area that Hickenlooper exempted from federal roadless protections.

Arch Coal, the nation’s second largest coal mining company, had been given federal permission to build 6 miles of new roads in this roadless area, as well as the right to build dozens of drilling pads and construct vents to release methane from the mines for worker safety. The expansion, Arch claimed at the time, was necessary to their growing international coal sales (the company has just opened their first office in Beijing in 2013).

Zukoski and the other organizations involved in the lawsuit wanted to know why the federal government had failed to factor in the effects of global warming in their environmental analysis of the Arch Coal proposal for expansion into the Sunset Roadless Area — an oversight that seemingly failed to meet National Environmental Policy Act requirements.

The legal team was able to prove the government had knowingly ignored the so-called social cost of carbon. An email from a Bureau of Land Management economist concerning the Arch Coal proposal read “placing quantitative values on greenhouse gas emissions is still controversial” and that the impact of methane emissions from mining range between $5 and $800 per ton of coal. The BLM chose to omit this information completely, while highlighting the economic benefits of coal mining.

Zukoski won the case. And the federal district court vacated the North Fork Coal Mining Area in September 2014. Arch Coal’s lease to expand the West Elk Mine (by about 1,700 acres) was thrown out.

But that certainly wasn’t the end of the discussion over the North Fork Coal Mining Area.

In November 2015, the Forest Service published a Notice of Intent to reinstate the North Fork Coal Mining Area exception of the roadless rule. By Nov. 20, the Forest Service published a Supplemental Draft Environmental Impact Statement looking at the climate impacts, including the so-called social cost of carbon, of opening nearly 20,000 acres of areas of Gunnison National Forest up to coal mining. The Forest Service’s proposal would permit mining of up to 170 million tons of coal over a 10-to-30 year period. The public comment period on the proposal — which Zukoski and other environmentalists refer to as the Colorado Roadless Rule “loophole” — closed on Jan. 15.

Zukoski says that despite the Forest Service’s proposal to open some of Colorado’s roadless land up to mining, the environmental analysis is historically significant for three reasons.

“First, this is the first time ever that the federal government anywhere across the country has attempted such a thorough disclosure of the climate impacts of a federal fossil fuel decision,” he wrote in an email to Boulder Weekly.

Second, he says, the analysis provides “significant fodder” for the “keep it in the ground” movement because it looks at carbon emissions from coal mining processes, such as methane venting.

“They are going to be venting [enough] methane to overwhelm half or perhaps all of the benefits we get in Colorado from the much ballyhooed oil and gas regulations that the state adopted in 2014,” Zukoski says. He adds that mining the coal in the North Fork area will result in 130 million tons of carbon dioxide released into the atmosphere.

“That amount of carbon pollution is approximately the same amount as is emitted from all the cars, all the factories, by all the citizens in the state of Colorado in a year,” he says.

Finally, Zukoski says, the analysis reinforces the perception that federal agencies have a blind spot when it comes to the contribution taxpayer-owned minerals have on climate change.

Even with all the significance of this analysis, it seems the proposal to open the North Fork area to mining is far enough along in the process to be exempt from the federal government’s moratorium on coal leases.

The Bureau of Land Management (BLM) issued a directorate on Jan. 15 that sorted coal lease applications across the country into those likely to be impacted and those unlikely to be impacted. The West Elk Mine is listed as a project “potentially covered by one of the pause exceptions.”

Seventeen mines in total, with five of those in Colorado, will be exempt from the leasing pause.

Of the five leases in Colorado that the BLM estimates will actually be paused, four involve closed, idled or nonexistent mines.

“One active mine may be impacted (the King II Mine in La Plata),” Zukoski wrote in an email to BW, “and it will take more research to figure out whether that mine has reserves sufficient to mine without its proposed expansion.”

Ultimately, the moratorium won’t have much impact on mining in Colorado. But Zukoski doesn’t dismiss it out of hand.

“That’s sort of the narrow picture, that it’s business as usual out there, but is it?” Zukoski asks. “What the administration did [on Jan. 15] is to say that they’re going to take a hard look at the climate impacts of coal mining on federal public land. Forty percent of the nation’s coal comes from public land, so it’s a huge contributor to climate change, and one that the Obama administration, except when they get sued, has declined to look at. So this is a significant announcement.”

He adds that the Forest Service should now be keenly aware that opening up roadless forest in Colorado runs against what the Secretary’s pause represents.

“Which is acknowledgement that there are these huge potential costs to the environment,” Zukoski says. “This is a textbook case of why you should leave coal in the ground. To get at [coal in the North Fork area], they’ve gotta bulldoze through habitat for lynx and black bear and elk at 9,000 feet where when you mow down an Engelmann spruce it’s gonna take centuries for it to regrow. So there are huge on-the-ground impacts.”

Adding to the complication of the North Fork Area’s future is Arch Coal’s financial situation — the coal company filed for Chapter 11 bankruptcy on Jan. 11. 

Mark Squillace, a former Interior Department attorney and current University of Colorado Boulder law professor, says that while it’s impossible to know what will happen because of Arch’s bankruptcy, the federal moratorium on coal leasing could make approved but not-yet-sold leases much more valuable to other coal companies.

“It’s conceivable that Arch could sell [the West Elk Mine] off to another company and maybe get a premium for the sale of that because there’s a potential new lease [for expansion] attached to that,” Squillace says. “I don’t know. I think we don’t know how this is going to play out.”

Arch Coal didn’t respond to interview requests by publication deadline.

While the federal moratorium may seem like a climate change policy by the Obama administration, some experts don’t see it that way.

“One of the things that was said on the heels of the announcement was one goal was to ensure the public gets a fair return on sales and margins of federal coal and that revenue should be used to pay for the costs of an energy transition,” says Mark Haggerty a researcher and policy analyst at Headwaters Economics in Montana. “What they are saying, I think, is the administration recognizes [energy] markets have changed, and permanently so — air quality regulations, mercury [emissions] in part, but also carbon if the Clean Power Plan survives — those things are causing the shift already [to other forms of energy] and that part of the problem with federal leasing doesn’t match up in a number of ways.”

Zukoski agrees.

“We have to do something to help the communities that are overly reliant on coal and try to figure out how to help those communities transition because coal seams run out,” he says. “I think employment in North Fork Valley dropped 30 or 40 percent over the last three or four years.”

Even if the exception to Colorado’s Roadless Rule — the “loophole” that is being proposed by the Forest Service now — is not reinstated, Zukoski says Arch Coal still has the West Elk Mine under lease for another 10 years.

“So, this admin can say, ‘Let’s protect these roadless lands and let’s work for the next 10 years to find a better future for the North Fork people in the North Fork Valley.”