A three-judge panel at the U.S. Tenth Circuit Court of Appeals on July 23 turned back a WildEarth Guardians appeal over a U.S. Environmental Protection Agency air plan for the coal-fired Four Corners Power Plant in New Mexico.
In August 2012, EPA had promulgated a final Federal Implementation Plan (FIP) to reduce regional haze by regulating emissions of NOx and particulate matter (PM) at the five units of the Four Corners plant, located on the Navajo Reservation in northwestern New Mexico.
WildEarth Guardians filed a petition for review, arguing that the FIP did not comply with the Endangered Species Act (ESA) because the EPA failed to consult with the Fish and Wildlife Service about the effect of the FIP even though the EPA had discretion to act to protect endangered fish near the plant from mercury and selenium emissions.
“We deny the petition,” said the July 23 appeals court ruling, “WildEarth has contended that the EPA had four grounds for the exercise of discretion that could have benefitted the fish. But the principal ground was mooted by the closure of Plant Units 1–3 and two other grounds were not raised in WildEarth’s opening brief. As for the fourth alleged ground, it could not create a duty to consult under the ESA because it would have required the EPA to exceed the clearly delineated boundaries of the FIP.”
Four Corners is owned by Arizona Public Service (APS), which is the plant operator, and several other utilities. At the time of the rulemaking, the plant consisted of five units; Units 1 and 2 were each rated at 170 MW, Unit 3 was rated at 220 MW, and Units 4 and 5 are each rated at 750 MW. Units 1-3 were shut at the end of 2013 to meet the regional haze plan.