Two judges at the U.S. Tenth Circuit Court of Appeals on April 16 rejected a motion for an emergency stay from a Navajo Nation entity of a U.S. District Court ruling that shut down mining on part of the permitted area for the Navajo coal mine, which is the sole coal supplier to the Four Corners power plant.
The lower court judge found that the U.S. Office of Surface Mining had failed earlier this decade during the permitting for this particular mine area to take into account the mercury emissions from the Four Corners power plant as a consequence of the mining of this coal. Navajo Transitional Energy Co. LLC (NTEC) said in its motion for an emergency stay that while it could keep up coal supply to Four Corners over the next few months from other mine areas and a mine stockpile, while the OSM issues a new environmental review covering the mercury emissions, that the lower court order would force the bypass of coal in the affected permit area, costing it money and perhaps some coal reserves that would not be economic to recover in the future.
Said the April 16 stay rejection: “When reviewing a stay motion, we consider: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. … NTEC has failed to make the requisite showing. Accordingly, we deny the motion for emergency stay.”
The U.S. District Court for the District of Colorado, acting on a complaint from environmental groups, had on April 6 ordered the shut down of mining in a particular permit area called “Area IV North,” which is approximately 800 acres of the total approved permit area of 20,590 acres.
The tribal company said the District Court judge clearly erred in saying that OSM has to consider power plant “operations” as part of OSM’s rules for coal mines. “’Operations’ under OSM’s regulations are limited to activities conducted on the surface of lands in connection with a surface coal mine (or surface impacts of underground mining) and the areas on which such activities occur and disturb the land surface, including some adjacent lands, the use of which is incidental to such activities. ‘Operations’ under OSM jurisdiction are plainly not defined to include coal-fired power plant operations. The District Court’s conclusion that OSM had jurisdiction over the FCPP, based on (1) an erroneous ruling that coal combustion impacts are indirect effects under [the National Environmental Policy Act], (2) an irrelevant draft biological opinion, and (3) an inapposite regulation, is legal error.”
Said NTEC about what the lower court ruling does to the mine plan: “Halting mining there, even temporarily and even if the Mine stays open, portends ‘sterilizing’ coal in not only that area but also in remaining unpermitted areas, contrary to Congress’ goals to maximize recovery of coal resources and to develop nonrenewable Navajo trust resources.” Basically, NTEC is indicating that it can keep supplying the full needs of Four Corners, at least for the time being, even with the lower court order in place, but the shutdown of this one area will throw off its mining plan, forcing it to bypass coal in the affected area that it may never be able to cost-effectively mine in the future, thus the use of the term “sterilizing.”
The April 16 rejection of the emergency stay leaves NTEC in the position of taking the time to fully argue its appeal of the lower court ruling, though if OSM issues a new environmental review that isn’t itself struck down in court, then the current Appeals Court case may become moot.