Beef With EPA Belongs in 9th Circ., Judge Says

     SAN FRANCISCO (CN) ­ – A federal judge dismissed Arizona tribal conservation groups’ challenge of the Environmental Protection Agency’s decision to delay emissions reductions standards at one of the nation’s dirtiest power plants, finding the case belongs in an appeals court.
     Tribal conservation groups To’ Nizhoni Ani, Black Mesa Water Coalition and Dine Citizens Against Ruining Our Environment sued the EPA and Department of the Interior in Federal Court in October, claiming the agencies violated the Administrative Procedure Act and Federal Advisory Committee Act by creating an unlawful advisory group that shut the public out of the decision-making process and subverted efforts to clean up emissions at Arizona’s Navajo Generating Station.
     The 2,250-megawatt power station is located on the Navajo Indian Reservation, the largest Native American tribal land in the United States near Page, Arizona. According to a 2015 story by National Public Radio, it is the third-largest emitter of greenhouse gases of any power facility in the nation. In addition to carbon dioxide, it also produces nitrogen oxide, sulfur dioxide, mercury and other pollutants “that have essentially blanketed that part of the country in fog of haze and smog.”
     In February 2013, the EPA published a proposed rule requiring the Navajo power plant to install selective catalytic reduction technology to reduce emissions. But according to the complaint, later that month the government also established the Technical Working Group committee, which worked with EPA and others to craft a new agreement allowing the power plant to avoid installing pollution-reducing technology and to continue operating for the next 35 years. The agreement was approved as a final rule in July 2014 and published in the Federal Register on Aug. 8, 2014.
     The environmental groups say the federal government established the committee “for the sole purpose” of creating an alternative to the new rule requiring the plant to reduce emissions.
     “At no time were the Technical Working Group’s meetings and process publicly noticed or made open or available to tribal conservation organizations or other members of the public,” their 16-page complaint said.
     U.S. District Judge Vince Chhabria dismissed the complaint on March 22, ruling that his court had no jurisdiction because the suit challenged a final EPA action and belonged to the courts of appeals.
     “As a practical matter, the plaintiffs are challenging EPA action,” Chhabria wrote in a 2-page order. “They attack the process by which the EPA and others reached an agreement ‘that became [the] final rule,’ alleging that the agreement ‘and final rule challenged herein are nothing less than the tainted product of an unlawful process.’ That’s a challenge to the EPA’s rulemaking, and the Clean Air Act prohibits this court from adjudicating it.”
     Instead of his court, Chhabria said that the Ninth Circuit Court of Appeals should hear the claim, even though the groups had argued that bringing the case before Ninth Circuit “would not allow for meaningful review” of their claim. But Chhabria said the groups’ explanation of why was inadequate.
     “Amendment would be futile,” he wrote. “No matter how the plaintiffs frame their lawsuit, its practical effect is to challenge the EPA’s rulemaking. Accordingly, dismissal is with prejudice.”

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