The U.S. Tenth Circuit Court of Appeals has set an expedited schedule to review a request by the Navajo Nation for an emergency stay that would halt a District Court order that shut off coal mining at part of the plant’s supplying coal mine.
The District Court, acting on a complaint from environmental groups, had on April ordered the shut down of mining in a particular permit area of the Navajo mine in New Mexico while the U.S. Office of Surface Mining, which earlier this decade approved a permit for this mine area, considers and issues a revised environmental review that takes into account the mercury emissions when this coal is burned in the Four Corners Power Plant (FCPP). The lower court order effectively enjoins the tribe from continuing operations in “Area IV North,” which is approximately 800 acres of the total approved permit area of 20,590 acres.
The Navajo Nation, which owns and operates the coal mine, on April 9 filed for a temporary injunction. On April 10, the appeals court issued a schedule that ordered the plaintiffs, including the Center for Biological Diversity and Sierra Club, to file a response to the injuction request by April 13. The Navajo Transitional Energy Co. LLC, the tribal entity that operates the coal mine, can file a reply by April 15.
“The larger public depends on the Mine and FCPP,” said the emergency stay request. “FCPP provides essential baseload power to more than 500,000 customers in New Mexico, Arizona, and Texas, including major hospitals, schools, and emergency service providers. FCPP is ‘important to the western power grid.’ Halting mining in Area IV North now, even temporarily, would immediately create a significant risk to the continued viability of the Mine and could increase the risk that the Mine and FCPP would have to permanently close. If FCPP were forced to shut down, it would eliminate 31% of [Arizona Public Service’s] baseload power. The requested stay would protect these significant interests.
“In stark contrast, the harm to Appellees if the stay issued would be speculative or illusory. Appellees’ core claim of harm is procedural – that the effects of the mine plan revision should have been examined in an [environmental impact statement]. That harm has been cured by the Respondents’ preparing the very EIS sought byAppellees, to be issued in about two months. The only other harms identified in the remedy Order are the possible impacts of mercury emissions from FCPP (not the Mine) on the endangered Colorado pikeminnow and a passing reference to the public health. The court’s ruling is flawed because it rests solely on a draft biological opinion prepared by the Service for a wholly different project (a proposed new coal-fired 1500 mW generating station), which opined that a .1% increase in mercury deposition in the region was likely to jeopardize that fish. That proposed plant was never constructed. OSM’s mine plan decision in this case concerns maintaining the status quo, not authorizing any increase in air emissionsin the region. Analysis of this mine plan revision shows that there will be no effect on the Colorado pikeminnow, the Service having concurred with OSM that the mine plan revision would have ‘no effect…for the…Colorado pikeminnow.’”
The motion noted about the end-of-2013 shutdown of three of five For Corners units: “Indeed, there has now been a significant reduction of emissions from FCPP as a result of the closing of its Units 1, 2 and 3. And, even if mining in Area IV North were temporarily halted, there will be no change in mercury deposition during that interim period, because mining would be moved to Area III and that coal will be burned at FCPP in conjunction with 1.3 million tons of stockpiled coal.”
Capacity at the plant was reduced by 560 MW due to the closure of these three units at the end of 2013, from 2,100 MW to 1,540 MW.
“The net effect of halting mining at Area IV North, even temporarily, will be unnecessary degradation of the environment, risks to employees, and a gratuitous, punitive slap at NTEC and the Nation as its owner – a minimum expense to NTEC of $400,000 per month while Area IV North is not being mined, and a substantial risk that Navajo tribal trust resources there will be permanently ‘sterilized,'” said NTEC.
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.”