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The Hopi Tribe v. U.S. Environmental Protection Agency

United States Court of Appeals, Ninth Circuit

March 20, 2017

The Hopi Tribe, a federally recognized Indian Tribe, Petitioner,
v.
U.S. Environmental Protection Agency, Respondent, Salt River Project Agricultural Improvement and Power District; Navajo Nation; Central Arizona Water Conservation District; Gila River Indian Community, Respondents-Intervenors.

          Argued and Submitted November 18, 2016 San Francisco, California

         On Petition for Review of an Order of the Environmental Protection Agency

          Anne E. Lynch (argued) and Michael D. Goodstein, Hunsucker Goodstein PC, Washington, D.C.; David M. Waterman, Catherine Wright, and Karen Pennington, The Hopi Tribe, Kykotsmovi, Arizona; for Petitioner.

          Jennifer S. Neumann (argued), Attorney, Appellate Section; Daniel R. Dertke, Attorney, Environmental Defense Section; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Z.W. Julius Chen (argued), Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.; Aaron M. Flynn, Norman W. Fichthorn, and William L. Wehrum, Hunton & Williams LLP, Washington, D.C.; for Respondents-Intervenors.

          Before: Mary M. Schroeder, Stephen S. Trott, and John B. Owens, Circuit Judges.

         SUMMARY [*]

         Environmental Law

         The panel denied a petition for review by The Hopi Tribe challenging the Environmental Protection Agency's federal implementation plan under the Clean Air Act for the Navajo Generating Station in Arizona, which concerned the production of haze that hinders clear views of the Grand Canyon.

         The federal implementation plan was promulgated pursuant to the EPA's Tribal Authority Rule that governs the Clean Air Act's requirements on tribal land, and the Hopi Tribe objected to a proposed closure of the Station in 2044.

         The panel held that the Hopi Tribe's exclusion from a Technical Working Group, which was a group of stakeholders that developed the proposed Rule, did not violate a duty on the part of the government to consult with the Tribe. The panel held that the record showed that the EPA did consult with the Hopi Tribe during the rulemaking process.

         The panel rejected the Tribe's contention that the EPA failed to analyze each of the five BART factors - the "best available retrofit technology" to reduce emissions from the Station. The panel held that because the Technical Working Group proposal was an alternative to BART, there was no error in the EPA not analyzing the BART factors under the Technical Working Group alternative.

          OPINION

          SCHROEDER, Circuit Judge.

         The Hopi Tribe petitions for review of the Environmental Protection Agency's ("EPA") federal implementation plan ("FIP") under the Clean Air Act ("CAA") for the Navajo Generating Station ("Station") in Arizona. The station is operated by a consortium of utilities led by the Salt River Project and under a lease from the Navajo Nation that expires in 2019. It is a coal-fired plant that uses coal for which the Hopi Tribe receives royalties. The FIP was promulgated pursuant to the EPA's Tribal Authority Rule that governs CAA requirements on tribal lands. The Hopi contend the Tribe was not ...


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