Lawsuit claims Navajo coal mine approval was against the law

Claiming that the Navajo coal mine itself, and the Four Corners power plant that it serves, are both environmental hazards, several environmental and Native American groups filed suit May 15 against the U.S. Office of Surface Mining’s decision to approve a new permit area for the mine.

The suit was filed at the U.S. District Court for the District of Colorado by several organizations, including Diné Citizens Against Ruining Our Environment, San Juan Citizens Alliance, the Sierra Club, Center for Biological Diversity and Amigos Bravos. They accuse OSM, through its March 16 approval of a new mine area, of violating the National Environmental Policy Act (NEPA).

“The action challenges OSM’s decision to permit the Navajo Mine to expand strip mining operations into 714 acres of a portion of land designated ‘Area IV North’ on the Navajo Nation Indian Reservation, in San Juan County, New Mexico,” said the lawsuit.

This civil action is a companion to another Diné Citizens suit. In that case, this same Colorado federal court vacated a previous proposal to strip mine all 3,800 acres of Area IV North and ordered the OSM to revisit its NEPA analysis. The present Area IV mine expansion was proposed on remand in the wake of that decision, the lawsuit noted.

The lawsuit said venue in a Colorado court is proper for what amounts to a New Mexico matter because OSM made some of its decisions in its Denver regional office and this court had handled the prior lawsuit about Navajo mine permitting.

“This mine expansion permits the Navajo Mine operator, BHP Navajo Coal Company (BHP), to strip-mine 12.7 million tons of sub-bituminous coal, which, by contract, will then be burned in the Four Corners Power Plant (FCPP),” said the lawsuit. “FCPP generates electricity that is sold to consumers in New Mexico, Arizona, California, and Texas. FCPP is the largest emitter of nitrogen oxides (NOx) in the United States and is among the nation’s largest emitters of greenhouse gas pollution (GHGs), and mercury.”

The mining of this new coal area will not only cause pollution during the mine process, but the consumption of this coal will mean the power plant itself will emit pollutants, including mercury and GHGs, said the lawsuit. “San Juan County is currently the worst county in New Mexico for releases of toxic materials into the environment, among the top ten percent of the worst counties in the nation for releases of toxic materials into the environment, and among the top ten percent of worst counties in the nation for particulate matter and sulfur dioxide air pollution,” the lawsuit added.

Despite “ample evidence” of potentially significant impacts, OSM approved the Area IV North expansion by only considering impacts to human health and the environment in a vacuum, the lawsuit claimed. OSM ignored numerous indirect and cumulative impacts beyond the perimeter of the mine expansion, in particular the indirect impacts caused by the combustion of coal and the disposal of coal ash waste, as well as other impacts of the mine expansion when combined with other past, present, and reasonably foreseeable impacts, the lawsuit claimed.

The operator of FCPP, Arizona Public Service (APS), expects to continue operating the power plant for at least two more decades, the lawsuit said. If FCPP reduces its consumption of coal, the Navajo mine will have no other market for its coal and will reduce production accordingly, it added.

Groups want an injunction throwing out OSM approval

The groups want from the court:

  • a declaratory judgment that OSM’s decision to approve the expansion into Area IV North on the basis of an environmental assessment and finding of no significant impact violates NEPA and related regulations;
  • a declaratory judgment that OSM’s environmental assessment of the proposed expansion into Area IV North was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law and/or constitutes agency action unlawfully withheld or delayed under the APA;
  • an injunction setting aside OSM’s approval of the extension of the Area IV North extension and remanding the matter to OSM with instructions to prepare an environmental impact statement; and
  • a mandatory and permanent injunction prohibiting OSM from permitting any ground-disturbing activity in Area IV North until OSM remedies the alleged violations of NEPA.

Environmental groups are increasingly trying to tie the emissions from coal-fired power plants into the regulatory regime for coal mining, with no success so far. For example, a federal judge in Washington, D.C., on May 10 threw out a lawsuit that sought to force the Interior Department to impose tough new environmental standards, including on CO2 emitted when this coal is burned in power plants, on federal coal reserve leasing in the Powder River Basin of Wyoming. WildEarth Guardians, the Sierra Club and Defenders of Wildlife had brought that action. The judge ruled in that case that the plaintiffs had no standing to bring the suit.

BHP Navajo Coal is a unit of international mining giant BHP Billiton. The five-unit, 2,040-MW Four Corners plant is located on the Navajo Indian Reservation west of Farmington, N.M. The plant is owned by APS and five other utilities in the Southwest. APS is a unit of Pinnacle West Capital Corp. (NYSE: PNW).

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.