Three Navajo tribal groups on Oct. 26 filed suit in federal court against various government officials involved in a deal to reduce NOx emissions while at the same time preserving most of the 2,250-MW, coal-fired Navajo Generating Station in Arizona.
The lawsuit was filed in the U.S. District Court for the Northern District of California by To’ Nizhoni Ani, Black Mesa Water Coalition and Diné Citizens Against Ruining our Environment (collectively calling themselves “tribal conservation organizations”). The lawsuit is against: Jared Blumenfeld, U.S. EPA Region IX Regional Administrator; Gina McCarthy, U.S. EPA Administrator; Sally Jewell, U.S. Department of the Interior Secretary; the U.S. EPA itself; and the Interior Dept. itself.
The lawsuit is over the establishment and utilization of a Technical Working Group (TWG) for purposes of approval of an air quality implementation plan for the Navajo Generating Station (NGS), located on the Navajo Indian Reservation near Page, Arizona, in violation of the Federal Advisory Committee Act (FACA) and the Administrative Procedures Act (APA).
“The resulting agreement signed by DOI on July 25, 2013 (hereinafter, ‘TWG Agreement’) that became a final rule implementing regional haze requirements for NGS on August 8, 2014 (‘Final Rule’), is the unusable product of Federal Defendants’ FACA violations and unlawful process,” said the lawsuit. “As relief, tribal conservation organizations respectfully request that this Court: 1) enter declaratory judgment finding that Federal Defendants violated FACA in establishing and utilizing the TWG; 2) vacate the Final Rule and remand this matter back to the federal agencies for further proceedings; and 3) permanently enjoin future reliance on and implementation of the TWG Agreement.”
The lawsuit added: “Specifically, federal owners and regulators of NGS, one of the oldest and dirtiest coal-fired power plants in the western United States, unlawfully established a federal advisory committee called the Technical Working Group (‘TWG’) in a manner that lacked transparency and shut out the public and impacted communities from the deliberation process.”
EPA had initially in 2013 published a regional haze rule mandating expensive selective catalytic reduction (SCR) installations for NOx control on all three units at the Navajo plant. Then, out of the TWG process, came a compromise deal that generally requires the closure of one unit at NGS (or the curtailment of electricity generation by a similar amount) in 2019, and compliance with a NOx emission limit that is achievable with the installation of SCR on two units in 2030.
The NGS consists of three 750-MW units built in the 1970s. The units are co-owned by several entities, including plant operator the Salt River Project, the U.S. Bureau of Reclamation, Arizona Public Service and Tucson Electric Power.
The TWG consisted of representatives from the Environmental Defense Fund, the Navajo Nation, the Gila River Indian Community, Western Resource Advocates, the Central Arizona Water Conservation District, the Salt River Project (on behalf of itself and the other NGS owners) and the U.S. Department of the Interior.
NGS directly employs approximately 500 people, approximately 90% of whom are Native American. Peabody Energy‘s (NYSE: BTU) Kayenta coal mine, which exclusively supplies the plant, has more than 400 employees, more than 90% of whom are also Native American. The TWG process was considered a key element in keeping many of those people employed.