RBGG’s Van Swearingen and Michael Nunez sued the Office of Surface Mining Reclamation and Enforcement (OSMRE) on behalf of The Sierra Club on December 19, 2019 under the Freedom of Information Act (FOIA). The Complaint seeks the production of documents related to the potential development of a new biological opinion under the federal Endangered Species Act. The biological opinion states the Fish and Wildlife Service’s opinion as to whether or not a particular action is likely to jeopardize the continued existence of listed species or result in the destruction of critical habitat. The current biological opinion creates a loophole for the impacts of coal mining on wildlife listed as “endangered” or “threatened.”
The OSMRE failed to comply with its statutory deadlines and failed to produce any documents to the environmental organization. “Our legal team has been waiting for months to get basic information about what is going on with the biological opinion—particularly, if a new one is being created, who is drafting it, what science it is based on, and if it will actually fix the glaring flaws of the original version,” said Mary Anne Hitt, Senior Director of the Sierra Club’s Beyond Coal campaign.
The Endangered Species Act requires government agencies to consult with the U.S. Fish and Wildlife Service on policies and actions that impact the environment and wildlife. The operative biological opinion permits coal mining companies to forgo any serious scrutiny from the Service, and has long been derided by conservationists and coal-polluted communities as a loophole for the coal industry that allows them to avoid oversight from the Endangered Species Act.
The Obama Administration showed the inadequacy of the current biological opinion when it introduced the Stream Protection Rule, proving there were better solutions to protect communities from water pollution caused by coal mining. However, after Trump took office, Congress used the Congressional Review Act to scrap the new Stream Protection Rule, but the Obama Administration’s original findings remain. “Now, with fossil fuel lobbyists in the West Wing, it looks like Trump is trying to do away with his predecessor’s science-based findings, and potentially make the biological opinion even worse,” Hitt said.
“We’re asking the court to order OSMRE to produce the requested documents so that the Sierra Club and the general public can be informed and appropriately respond,” said RBGG’s Swearingen.
WASHINGTON, D.C. – The Sierra Club sued the Trump Administration today under the Freedom of Information Act (FOIA) for documents related to the potential development of a new biological opinion under the federal Endangered Species Act. The current biological opinion inappropriately creates a loophole for the impacts of coal mining on wildlife listed as “endangered” or “threatened.” The Office of Surface Mining, Reclamation, and Enforcement (OSMRE) has not complied with its statutory deadlines and failed to produce any documents to Sierra Club.
“This stonewalling from the Trump Administration needs to end,” said Mary Anne Hitt, Senior Director of the Sierra Club’s Beyond Coal campaign. “Our legal team has been waiting for months to get basic information about what is going on with the “biological opinion” — particularly, if a new one is being created, what science it is based on, and if it will actually fix the glaring flaws of the original version.”
The Endangered Species Act requires government agencies to consult with the U.S. Fish and Wildlife Service on policies and actions that impact the environment and wildlife. In 1996, the OSMRE and the Fish and Wildlife Service infamously approved a biological opinion which gave coal mining companies a loophole that allowed them to forgo any serious scrutiny from the Service, so long as they comply with the limits of their mining permits — no matter what’s actually in the permit.
The Sierra Club suspects that the Trump Administration is preparing a new opinion because the Obama Administration previously concluded that the current, 1996 biological opinion is outdated and inadequate, and the Trump Administration can’t legally ignore that conclusion. The Obama Administration showed the inadequacy of the current biological opinion when it introduced the Stream Protection Rule, proving there were better solutions to protect communities from water pollution caused by coal mining. Under the Trump Administration, however, Congress used the Congressional Review Act to scrap the new Stream Protection Rule, but the Obama Administration’s original findings still remain.
Rosen Bien Galvan & Grunfeld LLP (RBGG) is representing Sierra Club in the matter. “FOIA mandates prompt access and the OSMRE has unreasonably delayed,” said RBGG partner Van Swearingen. “We’re asking the court to order OSMRE to produce the requested documents so that the Sierra Club and the general public can be informed and appropriately respond.”
Media contact: Brian Willis, 202.675.2386, Brian.Willis@sierraclub.org