Court Sympathetic to Tribe’s Power Plant Concerns

SAN FRANCISCO (CN) — The Ninth Circuit Court of Appeals appeared to favor giving the Hopi Tribe more say in the pollution controls at the Navajo Generating Station in Paige, Arizona – although it may leave controversial new rules in place.

The Navajo Generating Station burns 24,000 tons of coal each day, and the Environmental Protection Agency has listed it as the third-largest carbon-emitting facility in the United States, according to the Arizona Republic newspaper.

Instead of modernizing its equipment to reduce emissions in line with the Clean Air Act, the government is allowing the plant to reduce emissions in other ways, such as short-term closures.

A host of interested parties filed suit about the arrangement in 2014.

A three-judge panel heard two cases regarding the power plant on Friday: The Hopi Tribe v. USEPA and Vincent Yazzie v. USEPA.

The Hopi Tribe’s lawsuit was consolidated with similar challenges from the To’ Nizhoni Ani, the Black Mesa Water Coalition, Dine Citizens Against Ruining the Environment, the Sierra Club and the National Parks Conservation Association, the Navajo Nation, the Gila River Indian Community and others.

The tribe claims the EPA violated the Administrative Procedure Act and Federal Advisory Committee Act by creating an unlawful advisory group that shut them out of the decision-making process surrounding the power plant.

Attorney Erin Lynch, representing the Hopi, said the EPA purposely kept the tribe in the dark while it consulted other stakeholders and considered new regulations, which violates the special trust relationship between Native American tribes and the federal government.

“They didn’t even notify the tribe of the process, and certainly didn’t include them,” Lynch said.

U.S. Circuit Judges Mary Shroeder, John Owens and Stephen Trott appeared sympathetic to the tribe’s plight.

“This part of the case bothered me the most,” Owens said, directing his comment to Lynch. “You had this working group and the Hopi tribe is not even allowed to know this was going on. My common sense tells me this is wrong, but what case can we look to that shows that this is clearly wrong?”

While Lynch struggled with the answer, Trott interjected, “This could be that case.”

Jennifer Newman, representing the EPA, argued that although the agency had a policy recommending that it consult with the tribe, it was not required to do so.

Judge Shroeder crossed her arms and leaned away from Newman, as if disgusted by the reply.

Trott also didn’t seem to buy it.

“I don’t understand this whole thing,” he said. “It’s deliberate exclusion. The essence of due process is that everybody affected gets to be heard. You seem hell-bent on saying ‘We’re not going to do this!’” As his voice rose, he pounded his fist on the table for emphasis.

Yazzie’s complaint, which seeks a strict enforcement of EPA standards at the power plant, did not stir the same emotion from the panel.

With input from the advisory group that had excluded the Hopi Tribe, the EPA decided to exempt the plant’s owners, Salt River Project, from meeting the Clean Air Act’s “Best Available Retrofit Technology” requirement, which would have required modernized emissions controls that cost about $1.1 billion.

Instead, the EPA accepted the plant’s own plan to reduce emissions.

Janette Brimmer, staff attorney at Earthjustice, asked the judges to throw out the agreement and require the plant to retrofit its technology by 2018 or face shutdown.

Trott noted that such an order would effectively put the plant out of commission, as retrofitting it so quickly was probably impossible.

The Navajo Nation is fighting to keep the agreement in place. The plant is its top employer and represents more than a third of the Navajo’s total income. The Navajo Nation also receives revenue from the nearby mine that supplies the plant with coal, its attorney, Colin Bradley, said.

“The USEPA properly balanced 42 percent unemployment on the Nation,” Bradley told the panel. “If the plant were to close or there were significant reduction, these people would have problems finding jobs somewhere else.”

EPA lawyer David Carson said the plant would be shut down in 2044 in accordance with a deal struck with the Nation, so over time, the reductions in emissions would be even greater. Meanwhile, emissions would stay below the cap that current standards impose through other means. He said operators had cut emissions nearly in half.

“These are voluntary reductions, they are effective deductions and they continue until such time as the plant is shut down,” Carson said.

Owens liked Carson’s briefs, but also felt inclined toward Lynch’s perspective.

“If I agree with her, can I agree with you?” he asked Carson.

Carson requested that the rules and controls on the plant remain in place while the tribe was given a consultation if the Hopi’s petition was granted.

Owens asked that all parties submit a brief by Dec. 2 detailing what they are seeking.

“If we grant a petition in either case, what do you want us to do?” he said.