By: Brannah Hamilton
On October 28, various Navajo Environmental Groups filed suit in federal court against the Environmental Protection Agency (EPA), claiming the EPA passed a rule that exempted the Navajo Generating Plant from emission requirements.[i] In the complaint the To’ Nizhoni Ani, Black Mesa Water Coalition, and Diné Citizens Against Ruining Our Environment claim that the EPA bypassed its own emissions standards in a plan it approved for the Navajo Generating Station located on the tribes reservation.[ii] The groups also claim that the EPA’s failure to seek the input of the Navajo Nation before bypassing the regulations went against administrative procedure laws. [iii]
The Navajo Generating Station is the largest coal fired plant in the West and one of the oldest with its construction being completed in 1970.[iv] The plant has consistently been one of the largest producers of emissions in the U.S., resulting in various efforts to lower those emissions over the course of the plant’s operation.[v] Underscoring tribal conservation organizations’ desire to lower the station’s emission is its health impacts in Navajo communities. Each year it is estimated that the generating station’s pollution contributes to 16 premature deaths, 25 heart attacks, 300 asthma attacks, and over 15 asthma-related emergency room visits, along with $127 million in annual health costs.[vi]
In February 2013, due to continued pressure from the Navajo Nation and environmental groups, the EPA published a proposed Best Available Retrofit Technology (BART) rule which would require the installation of Selective Catalytic Reduction (SCR) technology on all three units at the Navajo Generating Station within a period of five years to reduce 84% of the plant’s NOx emissions.[vii] However, a month later, the EPA decided to invite the submittal of alternate proposals. The EPA asked for proposals on what it designated as the important and unique circumstances surrounding the plant. [viii] The owners of the Navajo plant established a federal advisory committee called the Technical Working Group (TWG) for the sole purpose of developing an alternative to the proposed BART rule.[ix] In their complaint the Navajo Nation asserts that the TWG’s meetings and process were never publicly noticed or made open or available to tribal conservation organizations or other members of the general public. [x] The lack of public notice would violate the Federal Advisory Committee Act (FACA) that was enacted in 1972 to ensure that advice from advisory committees is objective and accessible to the public.[xi] The Act established a process for establishing, operating, overseeing, and terminating these advisory bodies and created the Committee Management Secretariat to monitor compliance with the Act.[xii] The complaint states “the TWG met behind closed doors, shutting out the voices of local tribal community members most heavily impacted by continued pollution from NGS.”[xiii]
The TWG came up with an alternate proposal to the requirements of the BART rule. The new proposal allowed for the plant to continue operating, but did away with the requirement that SCR technology be implemented on all three units within five years.[xiv] Instead, the new agreement dictated that one unit of the power plant would be shut down by January 1, 2020, and SCR would be installed on the remaining two units by 2030.[xv] On July 20, 2014 the EPA adopted the TWG proposal. By adopting the agreement the Navajo Nation contends that the EPA bypassed its own regulation and “facilitated the Federal Government’s stated desire to maintain NGS while ‘minimizing negative impacts’ to Federal Government ownership interest.”[xvi]
The court should afford the Navajo Nation the relief that they have requested and grant a declaratory finding that the EPA violated the FACA because they failed to notify the public of TWC’s meetings, the deliberation process was never open or made available to the public, they never published the TWC meeting minutes, and did not make the agreement publically available until after the EPA had adopted the proposal.[xvii] The court should also set aside the TWG agreement and final rule, 9 Fed. Reg. 4651, and remand the case for further proceedings. This action by the court would give the EPA the opportunity to definitively establish that the final rule would result in fewer emissions than there would have been emitted under the original BART rule. In sum, the court should give the EPA an opportunity to substantiate its claim that the new rule is “better than BART”.[xviii] The size of the Navajo generating station and the negative impact that it has had on the Navajo Nation for over forty years should make the court pause and be critical of the decision to form the TWC, as well as the decision to adopt and implement TWC’s proposal.
[i] Diana Jones, EPA Sued Over Pollution from Power Plant on Navajo Land, Law 360 (Nov. 3, 2015),
https://www.law360.com/energy/articles/719199/epa-sued-over-pollution-from-power-plant-on-navajo-land.
[ii] Id.
[iii] Id.
[iv] Navajo Generating Station, Source Watch (Nov. 2, 2015),
http://www.sourcewatch.org/index.php/Navajo_Generating_Station.
[v] Id.
[vi] Death and Disease from Power Plants, Clean Air Task Force (Nov. 2, 2015),
http://www.catf.us/fossil/problems/power_plants//.
[vii] 78 Fed. Reg. 8273 (Feb. 5, 2013).
[viii] Comments on the EPA’s Proposed Regional Haze Rule for Navajo Generating Station, NGS Power 2 (Jan. 6, 2014), http://www.ngspower.com/pdfx/TWG/TWGComments1-6 2014.pdf.
[ix] Id.
[x] Complaint for Declaratory and Injunctive Relief for Violations of Federal Advisory Committee Act, To’Nizhoni Ani v. Blumenfeld, No. 3:15-cv-4915 (CA N.D. Oct. 26, 2015).
[xi] Federal Advisory Committee Act (FACA) Management Overview, U.S. Gen. Services Admin., http://www.gsa.gov/portal/content/104514 (last visited Nov. 12, 2015).
[xii] Id.
[xiii] Id. at 4.
[xiv] Historic Agreement Reached to Significantly Reduce Emissions from Navajo Generating Station and Provide Greater Certainty for Arizona Water and Power Customers, Navajo Generating Station 2, https://www.ngspower.com/pdfx/TWG/TWGJointNRJuly2013.pdf (last visited Nov. 12, 2015).
[xv] Id.
[xvi] Complaint for Declaratory and Injunctive Relief for Violations of Federal Advisory Committee Act, supra note x, at 5.
[xvii] Id. at 15.
[xviii] Comments on the EPA’s Proposed Regional Haze Rule for Navajo Generating Station, supra note viii, at 2.