Now that the U.S. Office of Surface Mining has done a new environmental review of a permit area at its Navajo coal mine, Navajo Transitional Energy Co. LLC (NTEC) on Oct. 14 asked the U.S. Tenth Circuit Court of Appeals to dismiss its appeal of a lower court ruling as moot.
It asked the appeals cour to remand the case to the U.S. District Court for the District of Colorado with orders to vacate the District Court’s April 6 order that struck down the OSM permit approval for a new mine area. The court on Oct. 15 set a deadline of Oct. 29 for the plaintiffs to respond to NTEC’s dismissal motion.
In its Oct. 13 Area IV North Biological Assessment (“2015 Area IV North BA”), OSM determined that coal combustion impacts from coal mined from Area IV North of the Navajo Mine Permit will not adversely affect any endangered or threatened species or their proposed or designated critical habitat. The lower court judge had struck down the mine area permit for lack of that analysis.
“The analysis and conclusion in the 2015 Area IV North BA have superseded the allegedly defective analysis done by OSM in 2012, cured the only alleged violation found by the District Court under the National Environmental Policy Act (‘NEPA’), rendered the issues on appeal no longer live, and constitutionally mooted this case, thus depriving this Court of jurisdiction,” said NTEC, which is an arm of the Navajo Nation.
NTEC said it has conferred with counsel for Plaintiffs-Appellees and they oppose this motion. The plaintiffs include the Sierra Club and the Center for Biological Diversity.
The Navajo Mine and its customer, the Four Corners Power Plant (FCPP), are both wholly located on the Navajo Reservation and have been operating continuously since the 1960s. The Navajo Nation, the largest Indian tribe in the United States, relies heavily on the mine and power plant for government revenues from taxes, royalties and lease and rights-of-way payments. Even with the shuttering of three of the five generating units of FCPP in December 2013 to comply with U.S. EPA regional haze rulemaking, the mine and FCPP provide one-third of the Navajo Nation’s General Operating Fund, $159 million in annual labor income, $338 million in gross Navajo Nation product, and 2,293 jobs for the nation where the unemployment rate is a staggering 50%, NTEC told the court.
NTEC said that OSM’s new conclusion is fully consistent with the conclusions reached in the comprehensive Final Environmental Impact Statement issued by OSM and other cooperating agencies on May 1, 2015, and in the Final Biological Opinion issued by the U.S. Fish and Wildlife Service on April 8, 2015, for the FCPP/Navajo Mine Energy Project, both of which evaluated the impacts from past, present, and future coal mining and coal combustion on threatened and endangered species from July 6, 2016 through 2041.
NTEC added: “The District Court’s Opinion and Order are based on the erroneous legal conclusion that OSM was required to evaluate coal combustion impacts at FCPP as an ‘indirect effect”’under [the National Environmental Policy Act] in its approval of a mine plan revision under the Surface Mining Control and Reclamation Act (‘SMCRA’). Despite the fact that OSM has no control or authority over the FCPP, the court erroneously concluded that OSM was required but had failed to adequately undertake such analysis in the 2012 Environmental Assessment, reasoning that the permit revision was a bare ‘but for’ cause of the coal combustion effects and these effects were reasonably foreseeable.”