Activists challenge permit for Navajo Generating Station

A lawsuit claims the federal government didn’t follow open-meeting requirements as it developed a permitting plan for the Navajo Generating Station near Page. Ariz. Photo via Wikimedia and the Creative Commons.

Legal complaint alleges federal agencies violated open meeting rules

Staff Report

Community activists will challenge the federal government’s permit for the pollution-spewing Navajo Generating Station, alleging in a lawsuit that the EPA and the U.S. Department of Interior violated open-meeting regulations during the permitting process.

The plant, located on Navajo lands near Page, Arizona, is one of the nation’s oldest and dirtiest coal-fired plants. Toxic emissions fall especially heavily on the Navajo Nation, which suffers some of the highest rates of asthma and other lung problems in any community in the country.

Activists previously expressed concern with environmental studies related to the plant’s operation, claiming the Department of Interior failed to adequately address health impacts.

In a legal complaint filed Oct. 26, a coalition of Navajo community organizations say a FOIA search shows that the EPA and the Interior Department “colluded on a plan that will delay cleaning up harmful air pollution from the Navajo Generating Station.”

“This is discrimination and genocide for our people and way of life. Our people still make a living off the land, and we have a right to participate in meetings that affect our future. This plan was brokered in secret,” said Nicole Horseherder, a Black Mesa resident and founding member of To’ Nizhoni Ani. “We didn’t know these agencies were concocting a plan until they had already reached a final agreement that completely ignores the health and livelihoods of those who live in the shadow of the plant’s smokestacks.”

Federal open government and accountability laws require agencies to conduct their work in public. But the complaint alleges that a working group met in secret without providing any notice of its meetings or opening them to the public.

The resulting plan permits the plant to continue polluting the air with high levels of smog-forming nitrogen oxides for at least another 30 years, long past the expected operational life for a coal-fired power plant.

Documents obtained by the groups suggest that working group  met in secret to develop a plan that skirted EPA recommendations calling for 85 percent cuts in the plant’s harmful smog-forming nitrogen oxide emissions over the next five years in order to meet clean air safeguards.

“EPA and DOI deceived the public by lying about their involvement in the working group,” said Mallory Kindsfather, one of three student attorneys working on the case for the Environmental Law Clinic at the University of Denver. “The federal government has been shutting tribal communities out of decision-making for a very long time. These violations underscore the lengths to which federal agencies are willing to go in order to silence indigenous voices.”

The groups filed their complaint with the U.S. District Court for the Northern District of California, in San Francisco, where EPA Region 9 issues its regulations – more than 800 miles from the Navajo Nation. They are asking the court to overturn the plan under the grounds that it violates the Federal Advisory Committee Act.  The facts and law at the center of this complaint are as follows:

  •        Through a request for public information, tribal conservation organizations uncovered emails and other correspondences pointing to the Federal Government’s collusion and secrecy in establishing an advisory committee for the sole purpose of offering regulatory recommendations.
  • This information supports an inference that EPA participated in the advisory committee meetings, advised along the way, and provided assurances that the advisory committee’s end product would be approved.
  • The advisory committee did not provide public notice of its meetings or open them to the public.
  • EPA and Interior violated FACA by establishing and utilizing an advisory committee without abiding by these transparency safeguards.

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