By Amber Penn-Roco
On August 8, 2014, the Environmental Protection Agency (EPA) approved an Air Quality Implementation Plan, allowing the Navajo Generating Station, a coal-fired power plant located on the Navajo Reservation, to continue operating until 2044. The Plan required the Station to either close one of its three generators, or reduce output by an equivalent amount, by 2019. The Plan would not require the installation of any other emission controls until 2030.
EPA’s approval is controversial for several reasons. First, the Station “is the largest coal-fired power plant on the Colorado Plateau and one of the ten biggest polluters in the country.” Second, the public is concerned by the Station’s proximity to the Grand Canyon—it is located only 12 miles away—and because the Station “impacts visibility at 10 other national parks and wilderness areas.” Finally, many believe the EPA’s approval of the Plan was premature and allows for operations extending too far into the future—potentially until 2044. (Although, the Station site lease with the Navajo Nation is set to expire in 2019, the renewal of which will require the completion of an Environmental Impact Statement (EIS) that will look closely at the potential impacts of the Station and surely ignite even more controversy.)
EPA’s approval set off a flurry of litigation. Four separate Petitions have been filed with the Ninth Circuit Court of Appeals, requesting that the court review the Plan, pursuant to the Clean Air Act. The Petitions were filed by the Hopi Tribe, a collection of environmental groups, including the National Parks Conservation Association, the Sierra Club, the Grand Canyon Trust, the National Resources Defense Council, the Black Mesa Water Coalition and the Diné Citizens Against Ruining the Environment and two private individuals. The Navajo Nation has intervened in the proceedings. Last month, the cases were consolidated.
This litigation will pit conflicting tribal interests against each other. On one side, the Navajo Nation, which has obvious financial interest in the success in the Station. Both the Station and the Kayenta Mine, which supplies the Station, are located on the Navajo Reservation, providing jobs, lease income, royalties and taxes to the Navajo Nation. On the other hand, you have the Hopi Tribe, which is protecting its environmental interests. During the public comment process, the Hopi expressed concerned with the air quality and visibility on the Hopi Reservation and indicated that the EPA should have provided more detail on the specific emission controls that the Station will be required to use. It is particularly interesting that the Hopi has filed a Petition for Review, even though the Hopi also has an economic interest in matter; the Kayenta Mine is actually located on the reservation lands of both the Navajo Nation and the Hopi, providing the Hopi with similar forms of revenue that are enjoyed by the Navajo Nation.
Which tribal or environmental interests will prevail? The opening briefs, which are due at the end of the month, should shed some light on the interests and arguments of the parties.
Amber Penn-Roco’s practice focuses on tribal sovereignty issues, including environmental issues, economic development, and complex Indian Country litigation. Her experience also includes work on transactional matters, including entity formation, environmental compliance and permitting. She is an enrolled member of the Chehalis Tribe.