A coal production company owned by the Navajo Nation on April 8 filed at a federal court a notice of appeal of an April 6 decision out of that court to at least temporarily shut off any coal mining in a disputed area of a mine that is the sole coal supplier to the Four Corners power plant.
Said the April 8 filing at the U.S. District Court for the District of Colorado: “Notice is hereby given that the Navajo Transitional Energy Company, LLC, Intervenor-Defendant in the above named case, hereby appeals to the United States Court of Appeals for the Tenth Circuit from the Orders entered in this action on March 2, 2015 and April 7, 2015 and the Final Judgment entered on April 8, 2015.”
The final judgment is based on an April 6 order from District Judge John Kane that said: “In the antecedent to this Order, issued March 2, 2015, I concluded that the United States Office of Surface Mining Reclamation and Enforcement (‘OSM’) violated the National Environmental Policy Act (‘NEPA’), by failing to consider adequately the environmental impacts related to the combustion of coal that will be mined as a result of its approval of the Navajo Transitional Energy Company’s (‘NTEC’) Permit Revision Application in its Environmental Assessment/Finding of No Significant Impact (‘EA/FONSI’) for NTEC’s Permit Revision Application. Accordingly, I sustained Petitioners’ challenge to OSM’s EA/FONSI and its approval of NTEC’s Permit Revision Application, and I ordered the parties to confer in an effort to reach an agreement with respect to the appropriate remedy.
“The parties have failed to reach an agreement as to the appropriate remedy. In lieu of such an agreement, the parties have presented briefs summarizing their arguments in support of their proposed remedies. Although the parties concur that remand to OSM is appropriate, they disagree as to whether OSM’s EA/FONSI and its approval of NTEC’s Permit Revision Application should be vacated pending OSM’s compliance with NEPA.
“Petitioners argue that I should vacate OSM’s EA/FONSI and OSM’s approval of NTEC’s Permit Revision Application. They urge that vacatur is consistent with NEPA’s purpose of ensuring that federal agencies consider the environmental impacts of their actions before undertaking any ‘major federal action.’ They also argue that equitable factors counsel in favor of remand with vacatur, because any prospective damage to OSM and NTEC would be relatively minor and short-lived.
“The Federal Respondents and the Intervenor-Respondent argue that the appropriate remedy is remand without vacatur. These parties suggest that OSM’s violation of NEPA, which they assert is relatively minor, is outweighed by the potential disruption that would be caused if I were to vacate OSM’s EA/FONSI and its approval of the Permit Revision Application. Specifically, they argue that vacatur would have a significant economic impact on the Navajo Mine and the Navajo Nation, and that it could threaten the reliability of the region’s power supply.
“Based on the inherent jurisdictional authority of this court and upon consideration of my March 2, 2015, Memorandum Opinion and Order, the parties’ arguments regarding the appropriate remedy, and the entirety of the pleadings and arguments offered in this case, I rule for the reasons that follow that OSM’s EA/FONSI and its approval of NTEC’s Permit Revision Application are VACATED, pending OSM’s compliance with NEPA, and REMANDED to the agency for further proceedings consistent with my March 2, 2015, Memorandum Opinion and Order.”
Judge Kane later added: “Respondents and Respondent-Intervenor argue that the potential economic harm of vacatur outweighs the deficiencies in OSM’s EA/FONSI for the Permit Revision Application. They argue that vacatur could result in significant impacts to both NTEC and the Navajo Nation, and suggest that vacatur of the decision approving the 830-acre expansion could ultimately lead to the closure of the Navajo Mine and the Four Corners Power Plant.
“Intervenor-Respondent has demonstrated that vacatur would cause some economic harm. If OSM’s approval of NTEC’s expansion is vacated, it will cost NTEC approximately $400,000 per month to alter its mining operations to meet its contractual obligations to supply coal to the Four Corners Power Plant. This expense is not insignificant, and, depending on the length of time it would take OSM to remedy its NEPA violation on remand, the expense could be quite sizeable. Nonetheless, I conclude that this prospective economic harm does not outweigh the doubts concerning the validity of OSM’s actions that are raised by the deficiencies in OSM’s EA/FONSI and its approval of NTEC’s Permit Revision Application.”
The judge said in a footnote: “Intervenor-Respondent argues that an injunction will not offer Petitioners any meaningful relief, because the Four Corners Power Plant will continue to combust coal mined from Area III in the absence of a supply from Area IV North. The environmental effects resulting from the combustion of coal mined from Area III are not, however, at issue here. The environmental impacts of extracting and combusting an additional 12.7 million tons of coal to be mined from Area IV North form the basis of the instant controversy.”
This lawsuit was filed in May 2012 by various environmental groups, including the Dine Citizens Against Ruining Our Environment and the Sierra Club, against OSM and various OSM officials.