In November of 2009, St. Louis-based Arch Coal, the second-largest coal producer in the U.S., acquired the rights to strip-mine 731 million tons of Otter Creek coal reserves in the Powder River Basin of Montana.
But without a railroad to serve the mine, the coal would have nowhere to go and would forever remain in the ground. Thus, Arch Coal’s purchase set in motion a years-long application process before the federal Surface Transportation Board for permission to construct nearly 50 miles of new rail line to serve the mine. A host of additional market, transportation, and land-rights issues would become part of the approval process.
Vermont Law School’s Environmental and Natural Resources Law Clinic was brought in to help Northern Plains Resource Council, a nonprofit group of ranchers and family farmers, in their thirty-year battle against the railroad and mining project. Jillian Bernstein ’13, during her final year at VLS, took the lead on a four-student team and prepared one aspect of the case: a 60-page report on the “public convenience and necessity” of the new railroad, delivered to the Surface Transportation Board. Bernstein helped catalogue the negative impacts the rail line would have on the family-owned ranch land the line would bisect, and completed an impressive market analysis that made two convincing arguments. Seven of the ten domestic prospective buyers of Otter Creek coal had either been retired or converted to cheaper natural gas since the lease was granted, which left the Asian export market as the most feasible destination for the coal. And that market was already served by coal from Australia and Indonesia. This is a coal mine with no future.
“The final verdict is still a ways off,” Bernstein says. “But there have been small victories along the way. Bernstein and her team’s work led to one of those small victories. In a rare move, the Surface Transportation Board granted the parties the right to conduct “discovery,” a legal process that requires coal and railroad executives to turn over their files and answer questions under oath.
It has been invigorating for Vermont Law students to provide extensive legal work for a grassroots "holistic" strategy that compliments and leverages the power of the law. This long-standing case involved legislation, public education, earned media, coalition building, and intense grassroots pressure on decision makers. All added up, the railroad will not be built and the coal will not be mined.