The Evolving Scope Of Significant Effects On The Environment: The National Environmental Policy Act And Climate Change
| Author | Chris McChesney |
| Position | JD candidate, May 2007, at American University Washington College of Law |
| Pages | 12 |
Page 30
Chris McChesney is a JD candidate, May 2007, at American University Washington College of Law.
On Wednesday, November 29, 2006, the United States Supreme Court heard the oral arguments for Massachusetts v. Environmental Protection Agency . 1 The case revolves around the ability of the U.S. Environmental Protection Agency ("EPA") to regulate carbon dioxide ("CO 2 ") under the Clean Air Act ("CAA"); a seemingly minute point of law, unimportant to those outside of the environmental community and those regulated by the EPA. 2 In reality, the case has the potential to affect how the United States goes forward in developing a policy to address climate change. 3 It is the first time the Supreme Court will deal with the issue of climate change. The opinion of the Court will surely have a ripple effect: impacting pending climate change cases in lower courts, shaping the future of the standing doctrine, and spurring Congress to develop a climate change policy in the face of an administration that has, to date, decided not to mandate any reg ulation of CO 2 emissions. 4
Unsatisfied with the administration's response, many environmental groups, states, and local governments are looking to current environmental and tort law to begin regulating the emission of CO 2 and other greenhouse gases ("GHGs") through court orders. 5 This is evident by the litany of current litigation ranging from states bringing nuisance suits against power companies and automakers to the line of cases arguing for federal regulation under the CAA, such as Massachusetts v. EPA . 6 Another line of cases falls under the National Environmental Policy Act ("NEPA"). 7 While unable to force the regulation of CO 2 , NEPA does require federal agencies to consider the environmental impacts of their actions, potentially including the impacts of CO 2 emissions. 8 Though the usefulness of bringing NEPA litigation for the lack of or inadequacy of consideration given to CO 2 emissions is debatable, 9 this article will focus on a narrow question: Can courts force federal agencies to take a "hard look" at the impacts of climate change due to the release of CO 2 emissions stemming from the agency's actions?
While NEPA does not provide a means to create, or force the administration to develop, any such regulations, 10 NEPA can force federal agencies to at least consider and disclose to the public the impacts their actions will have due to contributions to CO 2 emissions. This article examines the requirements and case law of NEPA with respect to climate change and explores a hypothetical lawsuit concerning the lack of federal environmental documentation for the planned reliance on coal-fired power plants ("CFPPs") to provide the majority of the nation's new sources of electric power. 11 Next, this article will introduce the basic requirements of NEPA and the Council on Environmental Quality's ("CEQ") implementing regulations, and the science of climate change. The article will analyze what little case law there is on NEPA and climate change, including Border Power Plant Working Group v. Department of Energy , Mayo Foundation v. Surface Transportation Board , and Friends of the Earth v. Mosbacher , two of which are currently pending. Finally, the article will discuss the planned future reliance on CFPPs and a hypothetical lawsuit challenging such plans as a violation of NEPA.
The National Environmental Policy Act requires federal agencies to take a "hard look" at the environmental consequences of their proposed actions. 12 Section 102, the action forcing section, requires agencies to write Environmental Impact Statements ("EIS") for "major Federal actions significantly affecting the quality of the human environment." 13 NEPA separates all federal agency actions into three categories: major actions, non-major actions, and categorical exclusions. 14 Of these three, only major actions fall under the purview of NEPA. 15 Major federal actions are further broken down into two categories: those that have a significant impact on the quality of the human environment and those that have no significant impact. 16 In making the determination if an action will have a significant impact, agencies begin by preparing an Environmental Assessment ("EA"). 17 Much more concise than an EIS, EAs provide public documentation of what the agency took into Page 31 consideration to determine whether their proposed action will have a significant impact on the environment. 18 If there is no significant impact, the agency issues a document explaining how the agency came to their conclusion called a Finding of No Significant Impact ("FONSI"). 19 On the other hand, if it appears that the proposed action will have a significant impact, the agency must prepare a full EIS. 20 Courts have maintained that NEPA is purely procedural and has no enforceable substantive mandates.
Any net increase in CO 2 emissions from the U.S. will only serve to exacerbate the impacts of climate change.
In order to satisfy the requirements of NEPA, an EIS must discuss, among other things: environmental impacts, including adverse effects, of the proposed action; alternatives to the proposed action; and irreversible commitments of resources. 23 The CEQ, through its implementing regulations, further clarified and expanded upon the requirements set out in section 102(C) of NEPA, primarily through defining "effects" as those that are, "direct, indirect, or cumulative," and "cumulative impacts," as, "past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other actions." 24 It is through these definitions that NEPA has the potential to evolve and broaden its scope as the scientific understanding of the environment grows of just how significant the impacts of climate change, induced by anthropogenic emissions of CO 2 and other GHGs, truly are.
The necessity of constraining GHG emissions is a global problem, but the United States is responsible for largest percentage of the problem, compared to all other nations. 25 CO 2 is not the only GHG, but it is by far the most prevalent, and in 2002, the United States accounted for over twenty percent of the world's total CO 2 emissions. 26 While a large portion of the world is trying to decrease emissions, any net increase in CO 2 emissions from the U.S. will only serve to exacerbate the impacts of climate change. 27 Nevertheless, the question remains whether U.S. emissions are "significant" under NEPA? One effect of a major federal action may be a slight, seemingly miniscule, increase in worldwide CO 2 emissions. 28 An increase in CO 2 emissions that amounts to less than one percent of worldwide emissions of CO 2 is not the sole cause of climate change, and preventing or lessoning that amount of the CO 2 emissions will not stop climate change. 29 It is also currently not possible to determine the correlation between the CO 2 emissions from one action and the increase in temperature.
Perhaps a direct correlation between cause and effect and comparing the CO 2 emissions from one action to total worldwide emissions is the incorrect approach, both in theory and in law. After all, NEPA and the CEQ regulations require the consideration of cumulative impacts. 30 As stated earlier, cumulative impacts include those that are, "past, present, and reasonably foreseeable." 31 Moreover, "cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." 32 The release of CO 2 emissions and impacts of climate change could arguably fall under the scope of cumulative impacts. The court's interpretation of cumulative impacts, however, has likely neutered this approach.
Another potential option to have the impact of an increase in CO 2 emissions deemed significant is through Programmatic Environmental Impact Statements ("PEIS"). Along with individual agency actions, programs also fall under the purview of NEPA. 35 These broader EISs have the ability to look at the larger scale impacts of multiple projects that may later each get their own NEPA analysis. It remains to be seen if federal agencies or courts will ever view the emissions of CO 2 as "significantly affecting the quality of the human environment," and the outcome of pending cases may determine which of the approaches, if any, will be successful.
The perceived inaction on climate change has given rise to several lawsuits. 36 Of these, a court has decided only one NEPA case, 37 while three other NEPA cases are currently pending.
In BPPWG , plaintiffs challenged a DOE FONSI for permitting transboundary transmission lines entering the United States from Mexico. 44 The planned transmission lines were to originate from two different power plants, the La Rosita Power Complex ("LRPC") and the Termoelectrica de Mexicali power plant ("TDM"). 45 After determining the plaintiffs had standing, the court moved to the merits of the case - did the emissions of the power plants fall under the purview of NEPA via indirect Page 32 effects. 46 The court, after analyzing the case law, concluded that the "indirect effect" must be causally linked to the federal action. 47 In order to determine if DOE needed to consider the emissions of power plants, the court looked at the likelihood of each plant operating without the transmission lines, thereby establishing, or not, a causal link to the federal action. 48 The first plant, LRPC, consisted of four turbines - two for production of electricity for use primarily in Mexico, and two for the export of electricity to U.S. markets. 49 All of the turbines at the TDM power plant were for the production of electricity to export to U.S. markets. 50 Based on this, the court held that the impacts from the two LRPC turbines and all the TDM turbines had to be considered under NEPA, while the impacts from the two LRPC turbines for use in Mexico did not need to be considered. 51
The District Court in BPPWG fashioned a well-reasoned opinion to require DOE to take into account CO 2 emissions from the power plants. Though exclusion of the two LRPC turbines is not desirable, it is understandable: even without the transmission lines, those turbines would exist and emit CO 2 . 52 It is reasonable to see the pollution from those two turbines as unconnected to the federal action. Unfortunately, after such a favorable court opinion, DOE summarily dis missed the CO 2 emissions as "negligible." 53 Such actions begs the question, are the emissions from any one federal action ever enough to be considered significant? The following two cases try to deal with this question and find a means around it.
Before the court in Mayo is the Surface Transpor tation Board's ("SBT") Section on Environmental Analysis's ("SEA") EIS that approved new rail lines and upgrading of older lines.
After the 2003 court decision, STB published an SEIS.
FOE is attempting to get around the problem of negligible emissions by arguing the defendant federal agencies, the Overseas Project Investment Corporation ("OPIC") and the Export Import Bank ("EIB"), must do a PEIS. OPIC and EIB provide financing for oversea projects, including fossil fuel projects without any NEPA analysis. 70 Collectively, plaintiffs asserted that the defendants must write a PEIS and the projects they support account for eight percent of worldwide emissions. 71 With a larger percentage of worldwide total emissions affected by the agencies' actions, this case could prove to require the agencies to actually consider the impacts of climate change instead of brushing them aside as negligible.
The only decision in regards to the case, in August of 2005, allowed the plaintiffs to survive a challenge to their standing and the claim that there has been no final agency action. 72 On April 14, 2006, the court heard arguments on the merits of the case.
Under NEPA, it is possible that CO 2 emissions from an individual coal fired power plant need to be considered.
As of September 2006, the National Energy Technology Lab, an agency under DOE, estimates there are currently 154 proposed or new (since 2000) CFPPs, and by 2030, there could be as many as 300 new CFPPs. 76 Though it is difficult, if not impossible, to estimate the increase in CO 2 emissions these plants will create, one thing is certain: the forecasted dependence on a large number of new CFPPs will affect climate change. 77 Absent a mandatory federal policy on climate change, 78 it is unclear if the emissions of CO 2 from the new CFPPs will be regulated or even analyzed for their total cumulative impacts. Under NEPA, it is possible that CO 2 emissions from an individual CFPP need to be considered, but it is unlikely that individual CFPP's emissions would exceed 0.5 percent of world CO 2 emissions and therefore, pending the decision in Mayo , could be considered "negligible." 79 In order to gain a better understanding of how much of a significant impact the over 150 new CFPP CO 2 emissions will have on climate change, a more comprehensive analysis should be done under NEPA via a PEIS, but determining which federal agency is responsible for the PEIS could prove to be a fatal flaw in such an approach.
The continued reliance on coal presents a tremendous environmental challenge. In order to even begin to understand just how much of an increase in CO 2 emissions will result from the new "boom" in CFPPs, some sort of environmental analysis is needed from the federal government. However, it is difficult to determine which federal agency is responsible for these new CFPPs. While DOE tracks the construction, production, and emissions of these new plants, they have little to no actual permitting or regulatory authority over them. 80 The majority of the authority to permit the construction and operation of the plants rests with the states the CFPP resides in or with EPA under the CAA. 81 Even under the CAA though, EPA has delegated the majority of its permitting authority to the states and is not required to do any NEPA review. 82 With no clear solution, a broader approach must be taken. The plaintiffs in the above-discussed cases took such approaches in order to get at the underlying issue - GHG emissions from the combustion of coal and other fossil fuels. 83 In order to address the issue of new CFPPs in their entirety, a PEIS is needed. However, such broad programs that have causal connections to the construction of new CFPPs are not abundant, and the ones that do exist likely have PEISs in place or in production. If so, prospective plaintiffs can challenge the PEIS if it did not adequately discuss the impacts of increased CO 2 emissions from CFPPs.
One such potential agency program that may have a causal link to increased emissions of CO 2 is the Department of Interior's Office of Surface Mining ("OSM"). OSM, among other things, regulates mountaintop mining - a process in which the top of a mountain is removed through the use of explosives to get the coal within the mountain. 84 For this, OSM, in conjunction with the Army Corps of Engineers, the U.S. Fish and Wildlife Services, and the EPA, produced a lengthy PEIS.
With climate change becoming a certainty, the United States needs to take mandatory action to reduce its share of emissions. In the absence of such regulation, groups are attempting to address the problem through existing U.S. law, including through NEPA. The impacts of climate change are significant under NEPA, and federal agencies need to consider their contributions to climate change prior to taking action. Some agencies are accepting that emissions cause an impact, but the trick is now in finding a way around dismissing each action's individual emissions as negligible. After all, it is now easy for a court to accept climate change. However, it is more difficult for a court, and not necessarily scientifically accurate, to accept that the small increase in worldwide emissions from a single project will have a correlative impact on the environment via climate change. This very dilemma turned the seeming victory of BPPWG into nothing more than a Pyrrhic victory. The pending court case, Mayo and FOE , will play a large role in the future of climate change litigation and NEPA analysis. If one of the cases is successful and the agencies are either required to broaden their scope of impacts in terms of climate change or required to do a PEIS that takes a "hard look" at the impacts of CO 2 emissions, a door will open for further litigation. This litigation can serve to not only gain a better understanding of climate change and the impacts it will have on our environment, but also to aid in demonstrating the need for mandatory regulation. With continued efforts to evolve the scope of NEPA to encompass the full impacts of climate change, future litigation can succeed without losing the greater struggle.
_______________________
Endnotes
[1] Oral Arguments, Massachusetts v. Environmental Protection Agency, 415 F. 3d 50 (D.C. Cir. 2005), argued, No. 05-1120 (U.S. Nov. 29, 2006) [hereinafter Mass. - Oral Arguments].
[2] Mass. - Oral Arguments, id.
[3] See Mass. - Oral Arguments, id; see also Robert Barnes, Court Hears Global Warming Case; Justices to Decide Challenge on Greenhouse Gas Emissions, WASH. POST, Nov. 30, 2006, at A03.
[4] Robert Barnes, id; Addressing Climate Change, Council on Environmental Quality, http://www.whitehouse.gov/ceq/global-change.html (last visited Feb. 5, 2007).
[5] See Connecticut v. American Electric Power, 406 F. Supp. 2d 265 (S.D.N.Y. 2005) [hereinafter Conn. v. AEP]; California v. General Motors, No. 3:06CV05755 (N.D. Cal. filed Sept. 20, 2006) [hereinafter Cal. v. GM]; Environmental Defense v. Duke Energy, 411 F.3d 539, (4th Cir. 2005), cert. granted, 126 S. Ct. 201 (U.S. May 15, 2006); Mass. v. EPA, 415 F. 3d 50 (D.C. Cir. 2005), argued, No. 05-1120 (U.S. Nov. 29, 2006); Center for Biological Diversity v. National Highway Traffic Safety Administration, No. 06-71891 (9th Cir. Filed Apr. 12, 2006); Mayo Foundation v. Surface Transportation Board, No. 06-2031 (8th Cir. filed Apr. 14, 2006) [hereinafter Mayo]; Friends of the Earth v. Watson, 2005 WL 2035596 (N.D. Cal. 2005) [hereinafter FOE]; and Border Power Plant Working Group v. Department of Energy, 260 F. Supp. 2d 997 (S.D. Cal. 2003) [hereinafter BPPWG].
[6] See Conn. v. AEP, 406 F. Supp. 2d 265; Cal. v. GM, No. 3:06CV05755; and Mass. v. EPA, 415 F. 3d 50.
[7] See Mayo, No. 06-2031; FOE, 2005 WL 2035596; and BPPWG, 260 F. Supp. 2d 997.
[8] See 42 U.S.C. 4321, et al.
[9] Because the courts have interpreted NEPA not to require any substantive action and are only procedural, some have argued that the NEPA is not as effectives as its drafters intended to be. Without any substantive requirements, federal agencies can proceed with environmentally damaging actions as long as the agency follows the right procedures. See Brian LaFlamme, NEPA's Procedural Requirements: Fact or Fiction?, 7 MO. ENVTL. L. & POL'Y REV. 16 (1999).
[10] See 42 U.S.C. 4321, et al.
[11] See National Energy Technology Lab, Department of Energy, Tracking New Coal-Fired Power Plants: Coal's Resurgence in Electric Power Generation, Sept. 29, 2006, available at http://www.netl.doe.gov/coal/refshelf/ncp.pdf (last visited Feb. 5, 2007) [hereinafter National Energy].
[12] See Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).
[13] 42 U.S.C. 4332(2)(C); 40 C.F.R. 1500.1(a) (stating "Section 102(2) contains "action-forcing" provisions to make sure that federal agencies act according to the letter and spirit of the Act).
[14] 42 U.S.C. 4332(2)(C); 40 C.F.R. ßß1501.3-1501.4, 1508.4.
[15] 42 U.S.C. 4332(2)(C); 40 C.F.R. ßß1501.3-1501.4, 1508.4.
[16] 40 C.F.R. ß1501.4.
[17] 40 C.F.R. ß1501.3.
[18] 40 C.F.R. ß1508.9.
[19] 40 C.F.R. ßß1501.4(e), 1508.13.
[20] 42 U.S.C. 4332(2)(c); 40 C.F.R. ßß1501.4, 1508.11.
[21] See Morris County Trust v. Pierce, 714 F.2d 271 (3rd Cir. 1983).
[22] Robertson v. Methow Valley Citizens Council, 490 U.S. at 350-51 (1989).
[23] 42 U.S.C. 4332(2)(C); 40 C.F.R. 1502.
[24] 40 C.F.R. ßß1500-1508; 40 C.F.R. ß1508.8; 40 C.F.R. ß1508.7.
[25] Energy Information Administration, Department of Energy, Emissions of Greenhouse Gases in the United States 2005 - Table 1, 3 (Nov. 2006), at http://www.eia.doe.gov/oiaf/1605/ggrpt/pdf/057305.pdf (last visited Feb. 5, 2007); Energy Information Administration, Department Of Energy, International Energy Annual 2004: Table H.1 ? World Carbon Dioxide Emissions from the Consumption and Flaring of Fossil Fuels, 1980-2004, at http://www. eia.doe.gov/pub/international/iealf/tableh1co2.xls (last visited Feb. 5, 2007).
[26] CO2 accounts for more than 90 percent of GHG emissions. Id.
[27] Kevin Knobloch, President, Union of Concerned Scientists, Kyoto Treaty Goes into Effect Without U.S. (Feb. 16, 2005), transcript available at http://www.ucsusa.org/news/commentary/kyoto-treaty-goes-into-effect-withoutus. html (last visited Feb. 5, 2007).
[28] See Final Environmental Impact Statement for the Imperial-Mexicali 230-kV Transmission Lines at 4-59 (December 2004), available at http://www.eh.doe. gov/nepa/eis/eis0365/toc.html (last visited Feb. 5, 2007) [hereinafter Imperial- Mexicali].
[29] Imperial-Mexicali, id.
[30] 40 C.F.R. ßß1508.7, 1508.8.
[31] 40 C.F.R. ß1508.8.
[32] 40 C.F.R. ß1508.8.
[33] See Council on Environmental Quality, Major Cases Interpreting the National Environmental Policy Act, 7, at http://www.nepa.gov/nepa/caselaw/ Major_NEPA_Cases.pdf (last visited Feb. 5, 2007).
[34] See Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985); Seattle Audubon Society v. Lyons, 871 F. Supp. 1291 (W.D. Wash. 1994), affirmed 80 F.3d 1401 (9th Cir. 1996).
[35] See 40 C.F.R. ß1502.4(b).
[36] JUSTIN R. PIDOT, GLOBALWARMING IN THE COURTS, 1, Georgetown Environmental Law & Policy Institute (2006).
[37] BPPWG, 260 F. Supp. 2d 997 (S.D. Cal. 2003).
[38] The three cases pending are: Friends of the Earth v. Mosbacher, formerly Friends of the Earth v. Watson, 2005 WL 2035596 (N.D. Cal. 2005); Mayo, No. 06-2031 (8th Cir. filed Apr. 14, 2006); Center for Biological Diversity v. National Highway Traffic Safety Administration, No. 06-71891 (9th Cir. Filed Apr. 12, 2006).
[39] BPPWG, 260 F. Supp. 2d 997 (S.D. Cal. 2003); Final Environmental Impact Statement for the Imperial-Mexicali 230-kV Transmission Lines at 4-59 (December 2004), available at http://www.eh.doe.gov/nepa/eis/eis0365/toc.html (last visited Feb. 5, 2007).
[40] Mid State Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003).
[41] Draft Supplemental Environmental Impact Statement, Powder River Basin Expansion Project, Decision No. 35730.
[42] Mayo, No. 06-2031 (8th Cir. filed Apr. 14, 2006).
[43] The name of the case changed due to a staff change at the Overseas Private Investment Corporation ("OPIC"), one of the two defendants. Friends of the Earth v. Mosbacher, formerly Friends of the Earth v. Watson, 2005 WL 2035596 (N.D. Cal. 2005)
[44] BPPWG, 260 F. Supp. 2d at 1006-08 (S.D. Cal. 2003).
[45] BPPWG, 260 F. Supp. 2d at 1006-08.
[46] BPPWG, 260 F. Supp. 2d at 1013.
[47] BPPWG, 260 F. Supp. 2d at 1013.
[48] BPPWG, 260 F. Supp. 2d at 1016.
[49] BPPWG, 260 F. Supp. 2d at 1016-17.
[50] BPPWG, 260 F. Supp. 2d. at 1016-17.
[51] BPPWG, 260 F. Supp. 2d. at 1016-17.
[52] BPPWG, 260 F. Supp. 2d. at 1016-17.
[53] Imperial-Mexicali, supra note 28.
[54] Mayo, No. 06-2031 (8th Cir. filed Apr. 14, 2006).
[55] Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520, 548 (8th Cir. 2003) [hereinafter Mid States].
[56] Mid States, 345 F.3d at 549.
[57] Mid States, 345 F.3d at 549.
[58] Mid States, 345 F.3d at 549.
[59] Mid States, 345 F.3d at 549.
[60] Mid States, 345 F.3d at 549.
[61] Mid States, 345 F.3d at 550.
[62] Mid States, 345 F.3d at 550.
[63] Mid States, 345 F.3d at 550.
[64] Mid States, 345 F.3d at 550.
[65] Mid States, 345 F.3d at 550.
[66] Pidot, supra note 38, at 13.
[67] Pidot, supra note 38, at 13.
[68] Pidot, supra note 38, at 13.
[69] Pidot, supra note 38, at 13.
[70] FOE, 2005 WL 2035596 (N.D. Cal. 2005).
[71] FOE, id.
[72] FOE, id.
[73] See Climatelawsuit.org ? Most Recent Update, at http://climatelawsuit.org/ (last visited Feb. 5, 2007).
[74] FOE, 2005 WL 2035596 (N.D. Cal. 2005).
[75] Plaintiffs motion for Summary Judgment, FOE, Civ. No. C 02-4106 (filed in the N.D. Cal. on March 31, 2006).
[76] NETL estimates that there will be 309 new CFPP by 2030. National Energy, supra note 11.
[77] See Energy Information Administration, Department of Energy, Annual Energy Outlook 2006 with Projections to 2030, Table 18 (Dec. 2005).
[78] See Climate VISION ? Voluntary Innovative Sector Initiatives: Opportunities Now, http://www.climatevision.gov/ (website explaining the Federal government's voluntary initiatives to address climate change) (last visited Feb. 5, 2007).
[79] Imperial-Mexicali, supra note 28. Mayo, No. 06-2031 (8th Cir. filed Apr. 14, 2006); PIDOT, supra note 38, at 13.
[80] Telephone interview with Jim Daniel, Department of Energy (Dec. 4, 2006).
[81] See Trinity Consultants, Air Quality Permitting for a New Coal-Fired Power Plant: a Timeline, at http://trinityconsultants.com/downloads/tp_coal_fired.pdf (last visited Feb. 5, 2007).
[82] The majority of permitting authority under the CAA rest in State Implementation Plans ("SIPs"). While EPA must approve these plans, it is the States that execute them. Additionally, the CAA provides for its own NEPA like review, and permits under the CAA are not subject to NEPA itself. See generally Clean Air Act, 42 U.S.C. ßß7401, et al.
[83] See FOE, 2005 WL 2035596 (N.D. Cal. 2005); Mayo, No. 06-2031 (8th Cir. filed Apr. 14, 2006).
[84] See generally Office of Surface Mining, Department of the Interior, Mountaintop Removal Mining: Frequently asked Questions, at http://www.osmre.gov/ mountaintopfaq.htm (last visited Feb. 5, 2007).
[85] Mountaintop Mining/ Valley Fills in Appalachia, Final Programmatic Environmental Impact Statement, Office of Surface Mining, Department of the Interior (Oct. 2005), available at http://www.epa.gov/region3/mtntop/pdf/mtm-vf_ fpeis_full-document.pdf (last visited Feb. 5, 2007).
[86] Mountaintop Mining, id.
[87] Mountaintop Mining, id.
