Home » Case Summaries » 2017 » Hopi Tribe v. U.S. Environmental Protection Agency, 851 F.3d 957 (9th Cir. 2017).

 
 

Hopi Tribe v. U.S. Environmental Protection Agency, 851 F.3d 957 (9th Cir. 2017).

 

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The Hopi Tribe sought review of the United States Environmental Protection Agency (EPA)[1] federal implementation plan (FIP) under the Clean Air Act (CAA)[2] for the Navajo Generating Station (Station) in Arizona. The Hopi Tribe contended that the Tribe was not adequately consulted about its interests before the FIP was promulgated. The Hopi Tribe also argued that EPA failed to analyze five factors for determining best available retrofit technology (BART) under the CAA.[3] Holding that EPA did not violate any duty to consult and that EPA was not required to analyze the BART factors, the United States Court of Appeals for the Ninth Circuit denied the petition for review.[4]

“The Hopi Tribe is a sovereign nation located in northeastern Arizona.”[5] Fifty percent of the people on the Hopi Reservation, including 54% of children, live in poverty. Unemployment on the Hopi Reservation is approximately 50%. The Station is the largest coal-fired plant in the western United States and burns coal from a mine located on both Navajo and Hopi Tribe lands.[6] Taxes and royalties from the coal represent a significant portion of the Tribe’s revenue. The Station also is responsible for about 1,400 to 1,900 Hopi jobs, which amounts to about 50%–70% of all employment on the Hopi Reservation. However, the Station emits haze that hinders clear views of the Grand Canyon. The FIP, promulgated pursuant to the CAA, sought to reduce these emissions. Under federal regulations, reductions must be made by identifying BART and installing either BART or better technology, known as a BART alternative.[7]

EPA’s rulemaking process in formulating the FIP took over five years, beginning with an Advance Notice of Proposed Rulemaking (ANPR) in 2009. At that time, EPA notified the Hopi Tribe of the ANPR and had multiple meetings and communications with Hopi Tribe representatives. EPA then issued a Supplemental Proposed Rule in 2013 that was developed primarily by other stakeholders, including the utilities that operated the Station. This group met as a Technical Working Group (TWG) that set an emissions cap for the future operation of the Station; the proposed rule that followed required the Station to be shut down either in 2044 or when the cap was reached, whichever occurred first. The final rule, issued in 2014,[8] matched this proposal. The Hopi Tribe, which had not been included in the TWG, objected to the potential closure of the Station, arguing that it was adverse to its economic interests.

On appeal to the Ninth Circuit, the Hopi Tribe first contended that its exclusion from the TWG negotiations violated a duty on the part of the U.S. government to consult with the Tribe. The Hopi Tribe argued that the duty to consult is binding on the United States as a single entity and stems from the general trust relationship that the United States shares with Indian tribes. The Ninth Circuit disagreed, finding no authority supporting the contention that the general trust relationship may be treated as a duty to consult. The Ninth Circuit further reasoned that EPA did in fact consult with the Hopi Tribe throughout the rulemaking process, and so even if EPA were bound by such a duty, EPA surely complied.

Second, the Hopi Tribe challenged the FIP on the grounds that EPA failed to analyze each of the five factors required for determining BART when it analyzed the TWG proposal. On this issue, the Ninth Circuit held that there was no error. EPA was not required to analyze the five BART factors because the TWG proposal was a BART alternative, which is governed under separate regulations.

In sum, the Ninth Circuit denied the Hopi Tribe’s petition for review because EPA did not violate any duty to consult with the tribe and EPA properly adhered to regulatory requirements in promulgating the FIP.

 

Footnotes    (↵ returns to text)

  1. The Salt River Project Agricultural Improvement and Power District, Navajo Nation, Central Arizona Water Conservation District, and Gila River Indian Community intervened on behalf of the respondent, EPA.
  2. 42 U.S.C. §§ 7401–7671q (2012).
  3. Id. § 7491(g)(2).
  4. In this opinion, the Ninth Circuit did not specify the standard of review. However, in its companion case, the Ninth Circuit specified that the FIP is a “final agency action” that will be upheld unless it is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” Yazzie v. U.S. Envtl. Prot. Agency, 851 F.3d 960, 968 (9th Cir. 2017) (citing 5 U.S.C. § 706(2)).
  5. The Hopi Tribe, https://perma.cc/8DZL-FLHH (last visited July 14, 2018).
  6. Yazzie, 851 F.3d at 965.
  7. 40 C.F.R. § 51.308(e) (2017).
  8. Approval of Air Quality Implementation Plans for Navajo Generating Station, 79 Fed. Reg. 46,514 (Aug. 8, 2014) (to be codified at 40 C.F.R. pt. 49).
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