The Hopi Tribe, a federally recognized Indian Tribe, Petitioner,
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.
and Submitted November 18, 2016 San Francisco, California
Petition for Review of an Order of the Environmental
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.
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.
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.
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.
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.
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.
SCHROEDER, Circuit Judge.
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