Ninth Circuit Rejects Challenges to Dirty Power Plant

SAN FRANCISCO (CN) — The Ninth Circuit on Monday rejected the Hopi and Navajo tribes’ challenges to the U.S. Environmental Protection Agency’s plans to reduce emissions at one of the nation’s dirtiest power plants.

The Navajo Generating Station in Page, Ariz. is listed by the EPA as the third-largest carbon-emitting facility in the United States; it burns 24,000 tons of coal each day.

Rather than modernize its equipment to reduce emissions, it will be allowed to reduce emissions in other ways, such as temporary shutdowns.

Numerous environmental groups and tribal groups challenged the EPA ruling, in two lawsuits. The Hopi argued that they were illegally left out of the decision-making process. Its lawsuit was consolidated with a similar challenge from the Navajo Nation, the Gila River Indian Community, Diné Citizens Against Ruining the Environment, the Sierra Club, the National Parks Conservation Association and others. Both suits were combined and argued before the court in November.

Ninth Circuit Judges Mary Shroeder, Stephen Trott and John Owens, in separate rulings Monday, denied both petitions. They panel ruled that the EPA’s actions were reasonable in allowing the plant to forego retrofits, that the EPA complied with any duties it had to consult with the tribes, was not bound by any directives from the tribes. Schroeder and Owens wrote the opinions.

The principal issue regarding the Hopi, Schroeder wrote, was whether the Hopis’ exclusion from a technical working group of stakeholders violated a government duty to consult with the tribe. Schroeder noted that although they were not included in the technical working group meetings, the Hopis were not entirely excluded.

“The tribe was invited to group consultations, there was a hearing on their reservation and all parties were aware at all times of the Hopi’s economic interests,” Schroeder wrote. “To the extent the Hopi contend the trust relationship required the United States to put their interests above all others, we have rejected that opinion.”

Owens, in denying the Navajos’ petition, wrote that the EPA determined that analysis of the need to retrofit the plant was unnecessary, which the EPA has the authority to do.

“In light of the discretion that the EPA enjoys, we cannot conclude that, under these unique circumstances, the EPA acted arbitrarily and capriciously. We thus deny the petitions,” Owens concluded.

During the November hearing, the judges appeared sympathetic to the tribes’ complaints. 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.

Jennifer Newman, representing the EPA, said that though EPA policy recommends that it consult with the tribes, it is not required to do so.

“My common sense tells me this is wrong, but what case can we look to that shows that this is clearly wrong?” Lynch was asked. She did not come up with an answer.

The Navajo Nation, however, had been fighting to keep the plant open and the EPA rulings in place. The plant is its top employer and accounts for more than one-third of the tribe’s income.

The Navajo Nation also profits from a nearby mine that supplies the plant with coal. The power station is also responsible for 50 to 70 percent of the employment on the Hopi Reservation, according to court records. The Kopi Reservation is completely surrounded by Navajo land.

The power plant is scheduled to close in 2044.

Department of Justice attorney David Carson, who represented the EPA, could not be reached for comment Monday. The EPA media relations office did not respond. Messages left at Hopi tribal offices headquarters were not immediately returned.

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