WESTERN ENVIRONMENTAL LAW CENTER – U.S. District Judge John L. Kane held that the OSM environmental assessment approving the 2012 expansion violated the National Environmental Policy Act (NEPA) by ignoring harms resulting from the mine expansion including toxic mercury pollution from burning the mined coal at the nearby Four Corners Power Plant, one of the most polluting coal plants in the United States.
According to U.S.DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane’s decision, The Navajo Mine and the Four Corners Power Plant are unusually interconnected; indeed, as Petitioners argue, they are interdependent. The Four Corners Power Plant is a mine mouth plant, which was “designed and constructed specifically to burn coal from the Navajo Mine.” AR 1-2-11-20. The coal mined at the Navajo Mine is hauled from the mining areas to stockpiles adjacent to the railroad; it is transferred from the stockpiles to train cars; and it is transported to the crushing and blending facilities adjacent to the Four Corners Power Plant. AR 1-2-11-40. The coal mined from the Navajo Mine is delivered exclusively to the Four Corners Power Plant, AR 8-1-1-2264, and it is not economically feasible for the Four Corners Power Plant to secure coal from any other source. AR 1-2-11-294 to -295. See also AR 2-1-1-2542 (“the Navajo Mine is the sole supplier of fuel to the [Four Corners Power Plant]”).
Under the existing Mine Plan, NTEC (Navajo Transitional Energy Company) will be unable to meet its contractual obligations as the exclusive fuel source for the Four Corners Power Plant. AR 1-2-11-285. Accordingly, the proposed expansion is necessary if NTEC is “to continue to provide a coal supply in accordance with [its] contractual obligations with the [Four Corners Power Plant] through July 6, 2016.” AR 1-2-11-28. See also AR 1-2-11-22, AR 1-2-11-24, AR 1-2-11-29, AR 1-2-11-270, and AR 1-2-11-276. Significantly, if NTEC expands its operations as proposed, an additional 12.7 million tons of coal will be burned over the term of the coal supply contract. AR 1-2-11-285. In other words, as Respondents themselves concede, “but for [OSM’s] approval of the permit revision application, coal would not be mined from Area IV North and the environmental impacts associated with the combustion of the mined coal would not occur.” Respondents’ Brief (Doc. 53) at 36.
Furthermore, given the extreme interdependence of the Navajo Mine and the Four Corners Power Plant, Respondents concede that the combustion-related effects are reasonably foreseeable. Transcript of Oral Argument (Feb. 18, 2015) at 36. Unlike a scenario in which a coal mine markets its coal freely to multiple buyers, each of whom uses that coal in different applications under different constraints, there is virtually no uncertainty regarding when, where, and how the coal mined as a result of NTEC’s proposed mine expansion will be combusted. All of the coal mined from Area IV North will be combusted at the Four Corners Power Plant. Transcript of Oral Argument (Feb. 18, 2015) at 54. Because there is no uncertainty as to the location, the method, or the timing of this combustion, it is possible to predict with certainty the combustion-related environmental impacts. Accordingly, I find that the coal combustion-related impacts of NTEC’s proposed expansion are an “indirect effect” requiring NEPA analysis.
In its EA for NTEC’s Proposed Mine Expansion, OSM purported to analyze the impacts associated with NTEC’s delivery of coal to the Four Corners Power Plant. AR 1-2-11-22. As Petitioners correctly note, however, OSM’s analysis of the combustion-related impacts is extremely limited. OSM’s analysis primarily focuses on the impacts associated with mining and transporting coal to the Four Corners Power Plant. OSM did, however, analyze and discuss emissions from the Four Corners Power Plant in the context of its cumulative effects analysis. As part of that analysis, OSM concluded that the proposed expansion, in conjunction with the continued combustion of coal at the Four Corners Power Plant and other major sources of ambient air pollution in the area, would have no “discernible impact to ambient air quality or to contribute to any cumulative effects on air quality in the [area of the proposed mine expansion].” AR 1-2-11-230.
Respondents note that pending regulations relating to the continued operation of the Four Corners Power Plant rendered uncertain the rate at which future combustion would occur, but they do not argue that this uncertainty made the combustion-related effects unforeseeable.
Although this cursory, conclusory analysis leaves much to be desired, OSM was only required to discuss the combustion-related effects “to the extent necessary under the circumstances for evaluation of the project.” Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1251 (10th Cir. 2011). With regard to the ambient air quality impacts resulting from the combustion of coal mined as a result of the proposed mine expansion, the EA’s cumulative effects analysis justifies OSM’s conclusion that the proposed expansion, and the concomitant combustion-related impacts, will not significantly affect ambient air quality in the region. See Border Power Plant Working Grp. v. Dep’t of Energy, 260 F. Supp. 2d 997, 1021 (S.D. Cal. 2003).
Petitioners also note, however, that OSM’s EA for the proposed expansion completely fails to address the deleterious impacts of combustion-related mercury deposition in the area of the Four Corners Power Plant. Nonetheless, Respondents argue OSM’s minimal discussion of the combustion-related impacts, including its analysis of mercury pollution, was sufficient. Specifically, Respondents argue that OSM was not required to further discuss the combustionrelated impacts of NTEC’s proposed expansion because: (1) the proposed action did not change the status quo with regard to coal combustion at the Four Corners Power Plant; (2) further consideration of the combustion-related impacts would have merely duplicated ongoing efforts of other governmental agencies; (3) OSM has little, if any, authority to address the combustionrelated impacts; and (4) OSM is already in the process of analyzing the combustion-related impacts in a forthcoming EIS. None of these arguments, either viewed separately or in combination with each other, justify OSM’s failure to discuss the mercury-related indirect effects of NTEC’s proposed expansion.
ALJAZEERA AMERICA – Navajo Nation split on coal deal
When the Australia-based company BHP Billiton announced it would pull out of the plant in 2016, it was good news for Dixon — until she found out that her tribe, the Navajo Nation, could soon be a new investor.
“It’s just about money. Nobody cares whose health is going down or who has health problems,” she said.
Tribal lawmakers voted Monday (Sept. 2, 2013) to form a limited-liability company that would run the mine, located near Farmington, N.M. The tribe said it will decide by next July 1 whether to purchase the mine from the Australian firm for about $85 million.
Brett Isaac studied economics and then started his own solar energy company, Shanto Energy. He believes coal is dirty fuel and disrespects the environment.
“Utilizing coal as our means of income kind of counteracts all the things that we were brought up to believe and hold as sacred,” Isaac said.
Navajo Council Delegate Dwight Witherspoon said he is as concerned about the use of fossil fuels and their impact on the world and the climate. But, he said, “for us to engage in the transition to more efficient or renewable type of energies, this provides us essentially with revenue to assist us in that transition.”
Tribal lawmakers saw the formation of the company to run a mine as an opportunity to gain control of resources on the reservation and ensure that the jobs and revenue that come with them are protected. The mine’s coal has generated more than $40 million for the Navajo Nation, Navajo Nation President Ben Shelly said.
HIGH COUNTRY NEWS – Navajo Nation’s purchase of a New Mexico coalmine is a mixed bag
Diné CARE, a Navajo environmentalist group, has opposed the purchase from the get-go, arguing that previous mine owner BHP Billiton was trying to dump an unprofitable asset on the Navajo people. Indeed, the reason the mine is for sale at all is because BHP couldn’t agree on a coal price with Four Corners Power Plant’s operator, Arizona Public Service. And now that Four Corners has shuttered its three oldest coal-burning units to comply with the Environmental Protection Agency’s haze regulations, the plant will buy 30 percent less coal from the mine than it used to. That means less profit for whomever operates the mine.
The Office of Surface Mining Reclamation and Enforcement is also reviewing the potential environmental impacts of extending the life of the power plant to 2041 and expanding the mine, which the tribal corporation plans to do. Initial findings aren’t expected until later this year, which worries Lori Goodman of Diné CARE. BHP Billiton is “trying to jump ship” before the environmental impact statement is finished, she says. “Why don’t we wait until after the EIS is done (to buy the mine)?”
Other Navajos have protested a liability waiver that the tribal energy company signed, absolving BHP Billiton of all future responsibility for any “known or unknown” damages, liabilities, or costs associated with operating the Navajo Mine. And still others say the timeline of the deal itself was rushed by one of the West’s largest utilities, Southern California Edison. Edison needed to sell its shares in Four Corners to meet California’s renewable portfolio standard, which requires utilities to get 33 percent of their energy from renewables by 2020, and to comply with a California law that prevents utilities from continuing to invest in coal plants. “The timing of this (deal) comes from others, not from us,” Craig Moyer, an attorney consulting on the purchase, told Navajo council delegates last April.