Latest Update April 6, 2021

Court Rejects Coal Council’s Attempt to Evade Accountability for Flouting Federal Transparency Requirements

Federal court denied a parting attempt by Trump’s Department of Energy to dismiss our lawsuit, finding our arguments plausible that the National Coal Council, Inc. operated as a federal advisory committee and must release its records accordingly under the Federal Advisory Committee Act, and that the National Coal Council’s subcommittees issued “rubber-stamped” recommendations that make their work subject to FACA.

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Under the Trump administration, an outside advisory group stacked with coal industry representatives is advocating for policies to increase coal extraction, despite the long-term environmental and public health from that extraction. Known as the National Coal Council, this body has existed since 1984 to recommend American coal production and consumption policies to the Department of Energy.

NCC’s reports in the recent past — before its shift to serve President Trump’s “Energy Dominance”  agenda — had more vigorously examined the coal industry’s carbon capture potential and evaluated ideas for lower-emission operations.

The current NCC has no competing viewpoints and meaningful public participation, developing pro-industry recommendations in complete disregard of the consequences for western ranchers, landowners, and outdoor enthusiasts. Its reports since 2017 suggest that the government seek to eliminate restrictions for coal mining on federal land, subsidize outdated coal plants in the name of “grid resiliency,” garner government sponsorship to research new coal-derived products, and secure generous financial support, tax breaks, and regulation exemptions for coal companies.

These recommendations were prepared by, and in consultation with, coal industry members who have a direct conflict of interest in the contents of the reports because they would financially benefit from the policies proposed.

The NCC has used the imprimatur of the Department of Energy to work exclusively to advance the coal industry’s economic interests, and it has unlawfully kept the American public in the dark along the way.

Travis Annatoyn, Democracy Forward Managing Senior Counsel

Without visibility into the NCC’s current work and the opportunity to provide input, advocacy groups such as the Western Organization of Resource Councils cannot inform the public of the NCC’s deliberations and proposals, and cannot advocate on behalf of its members who farm and ranch on lands on or near coal, oil, and gas deposits. Expansion or deregulation of coal mining will increase the likelihood that farmers and ranchers could see their land and livelihood suffer.

For example, coal extraction activities disturb nearby environs with machinery that emits noise, water, and air pollution, and mining practices (such as “longwall mining”) that can literally split open the earth.

And in an egregious violation of federal transparency law, the Department of Energy’s NCC has a private alter-ego — National Coal Council, Inc. — that purports to provide “administrative assistance” to the federally chartered NCC while withholding records from the public. Though it describes itself as a “separate, non-governmental, non-profit organization,” all of NCC Inc.’s members are appointed members of the current governmental NCC, and, as one court found, there is “no meaningful distinction between the NCC and NCC, Inc.”

We’ve filed suit on behalf of WORC to compel NCC to halt its work until it complies with the Federal Advisory Committee Act’s transparency requirements. We’re working alongside the Western Environmental Law Center, who are local counsel on the case. This lawsuit was filed on October 15 in the U.S. District Court for the District of Montana.

In the News

April 6, 2021

We survived the motion to dismiss, judge agrees that NCC, Inc. and the NCC subcommittees may be subject to FACA.

In its ruling, the court concluded that — despite the NCC’s refusal to release relevant records — WORC has plausibly alleged that “NCC, Inc. operates as a federal advisory committee under FACA,” that “DOE does not maintain a passive role in NCC, Inc.’s operation,” and that “the development of [the NCC’s] reports occurs largely behind closed doors in meetings of Council subcommittees.”

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Aman George

Counsel & Legal Policy Director

Challenging unlawful policies related to the environment, healthcare, and good governance.

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