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Judge Stops Bayer Idaho Phosphate Mine
By Todd Neeley
Monday, June 5, 2023 2:16PM CDT

LINCOLN, Neb. (DTN) -- The development of future phosphate production at the Caldwell Canyon Mine in southeast Idaho was stopped in its tracks by a federal judge Friday, who vacated a number of permits and other approvals for Bayer AG to mine a nutrient it uses to produce glyphosate-based products including Roundup.

On Friday, U.S. District Judge B. Lynn Winmill, a Clinton appointee, vacated Bureau of Land Management approvals for the new open-pit phosphate mine, the phosphate-use permit and rights-of-ways for a road, water pipeline, fiber optic line and powerline. Winmill also vacated the agency's environmental review under the National Environmental Policy Act.

Bayer told DTN on Monday the court's ruling doesn't affect current phosphate supplies.

"In the meantime, there is no impact to current supplies of our products," the company said in a statement.

"This litigation and ruling are specific to a future supply source, the Caldwell Canyon Mine, which we plan to have operational in the next few years. We believe the court's decision to vacate the BLM's approvals is excessive."

The U.S. District Court for the District of Idaho in January ruled in favor of several environmental groups that sued, claiming the Bureau of Land Management mishandled the permitting process.

The court found the bureau violated the National Environmental Policy Act and Federal Land Policy Management Act when it approved the mine without analyzing and restricting, mitigating or eliminating effects to greater sage grouse including harms to habitat and population connectivity.

Bayer AG has decided to change the active ingredient in Roundup for residential customers beginning in 2023. However, the company said it will continue to sell glyphosate for agricultural uses.

Environmental groups filing the lawsuit include the Center for Biological Diversity, Western Watersheds Project and WildEarth Guardians.

Bayer said BLM conducted a multi-year "science-based assessment" before issuing the mine permit.

The company plans to file an appeal.

"We believe the few specific deficiencies the court identified in the BLM's assessment can be fully addressed without having to vacate the approvals altogether," the company said.

"We will seek swift judicial review to minimize disruption to future agriculture supplies and the local Idaho communities."

Bayer said the Caldwell Canyon Mine has the potential to be the "most innovative and environmentally protective mine in the U.S."

According to an Aug. 15, 2019, news release from the Bureau of Land Management, the 1,559-acre mine would be an economic driver for the community.

BLM said it would sustain about 185 mining jobs and support 585 plant jobs for an additional 40 years, providing to the region $47 million annually for payroll, taxes, royalties and purchases.

Winmill said in the ruling that any economic burdens caused by its decision to vacate the BLM's prior approvals were outweighed by the need to ensure the ruling did not "incentivize agencies and third parties to 'invest heavily in potentially illegal projects upfront, only to claim later that the economic consequences in setting aside those projects would be (too great to ignore).'"

The groups filing the original lawsuit argued the phosphate mine would have cut through habitats for the greater sage grouse and other species.

Bayer and the Bureau of Land Management argued in court that deficiencies in the approvals for the mine "do not involve foundational elements that taint" the overall project.

The company had asked the court to remand the approvals back to the Bureau of Land Management instead of vacating.

"While the court recognizes that certain violations may be so fundamental as to render it impossible to make the same rule or decision," Winmill said in his ruling, "thereby foreclosing the possibility of remand, that has not been established here."

In the January ruling, Winmill found that the Bureau of Land Management's errors on the sage grouse are "serious errors that call into doubt whether the BLM chose correctly."

When the Bureau of Land Management issued a record of decision on the greater sage grouse in 2019, according to the ruling, the bureau relied on a "more lenient" management plan for the species. That 2019 plan was enjoined by a court, making a 2015 plan the controlling standard governing the greater sage grouse.

"In other words, if the court is to remand without vacatur, the BLM will not only be tasked with ameliorating their violations but ensuring that the project as a whole complies with the 2015 ARMPA (plan)," the Winmill said in his ruling.

"As CBD points out, there is a realistic possibility that the project will need alterations to do so."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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