Environmental Impact of Coal-Burning Power Complex in American Southwest Challenged in Five Recently Filed Lawsuits

Asking for a comprehensive, regionally-oriented 102 environmental impact statement under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., rather than individual statements on separate decisions by departmental agencies, conservationists and Indian groups filed two suits seeking to halt further government approval needed by a consortium of public utilities for their plans to expand and develop an extensive power generating complex in the Four Corners area of the American Southwest. Jicarilla Apache Tribe of Indians v. Morton, 1 ELR Dig. [184] (D.D.C., filed June 2, 1971), and National Wildlife Federation v. Morton, 1 ELR Dig. [185] (D.D.C., filed June 2, 1971). Plaintiffs also asked for nullification of federal approval of leases, contracts, rights-of-way, etc. made prior to the date of the [1 ELR 10114] complaint and an adversary-type public hearing on the draft regional environmental impact statement which must be filed prior to the final statement. These suits grew out of requests directed to the Interior Department by a coalition of conservation groups seeking a moratorium on federal actions related to the coal-fired power plant development. The only firm response was appointment of a Department task force to study the present situation, long-term power needs and the environmental impact of future development of power sources. The Interior Department indicated that there would be no moratorium and no environmental impact study as defined by NEPA.

Six thermal-electric plants and their related facilities including transmission lines are involved in this controversy. The Four Corners plant, on the Navajo Indian Reservation near Mesa Verde National Park, has been in operation since 1963. The Mohave plant, in Clark County, Nevada, on the Colorado River, has been operating since 1970 with coal strip-mined from Navajo and Hopi Indian lands on the Black Mesa in northeastern Arizona. Three other plants are under construction: the Navajo plant near Page, Arizona, the San Juan plant near Farmington, New Mexico, and the Huntington Canyon plant near Huntington, Utah. The largest of the six plants, Kaiparowits, large enough to serve a city the size of New York, is planned for one of two sites, both of which are within the boundaries of the Glen Canyon National Recreation Area. Cooling water for all of these plants is or will be withdrawn from the Colorado River and its tributaries.

The anticipated environmental impact of the development complex is described in plaintiffs' moving papers and in various letters and petitions to the Interior Department. Smoke from the Four Corners plant has covered up to 10,000 square miles, stretching from the Rio Grande Valley to Sante Fe. A Smoke plume, reaching into Arizona and Colorado, was the only man-made object visible in a 1966 photograph taken from Gemini 12 at an altitude of 170 miles. Particulate matter emitted daily from this plant alone exceeds that from all stationary sources in new York and Los Angeles combined. Water resources in the arid southwest allegedly are as threatened as the fabled clear air. The six plants will demand huge volumes for cooling from the Colorado River and its tributaries, the principal source of water for Southern California, Nevada, Utah, Arizona and Colorado. When completed, the Kaiparowits plant alone may consume enough water to serve the annual needs of all inhabitants of San Francisco, county and city. As water is withdrawn, less remains to dilute the very salty concentrations added when the Little Colorado River joins the Colorado a few miles above the Grand Canyon. Downstream users are already plagued by the high costs necessary to prevent rich farmlands from being withdrawn due to the deposition of salts by irrigation waters. The greatest impact on the land will be the land-scape left by the strip-mines of the Peabody Coal Co., the second largest coal owner in the nation. Besides, there are six National Parks, 28 National Monuments and three National Recreation Areas in the region affected by these power projects.

On April 14, 1971, the Native American Rights Fund, the Environmental Defense Fund and the National Wildlife Federation, later joined by the Sierra Club, asked Interior Secretary Morton for a moratorium on all federal actions related to power development in the Four Corners area. on May 7, Secretary Morton initiated a comprehensive examination of electrical power development in the southwest by agency officials in the Interior Department. Subsequently, on May 13 and May 27, the scope of this study was outlined. It would include the long-term power needs for the entire southwest, alternative methods to achieve the best power production, the environmental impact and tolerance of the area for further reliance on coal-fired plants and the economic, social and cultural impact on the region's residents and natural resources. The task force will seek information from other federal agencies and state, university, industrial and public interest groups.

On May 11, five Navajo Indians filed suit against the Secretaries of Interior and Health, Education and Welfare arguing a breach of defendants' fiduciary duties to protect plaintiffs' health and property by permitting construction of the Four Corners plant and seeking nullification of prior Interior Department approvals of leases and grants that allowed construction of the plant. Plaintiffs also sought to compel HEW to study the health effects of pollution. Yazzie v. Morton, Civil Action No. 938-71, 1 ELR Dig. [183] (D.D.C., filed May 11, 1971). Four days later, 62 members of the traditional Hopi Indian Tribe filed suit to rescind the strip mining lease on Black Mesa granted to the Peabody Coal Co. Lomayaktewa v. Morton, Civil Action No. 974-71, 1 ELR Dig. [197] (D.D.C., filed May 14, 1971). On June 2 National Wildlife Federation v. Morton and Jicarilla Apache Tribe of Indians v. Morton, the two suits discussed in this Comment, were filed. The fifth suit was brought as a nuisance action, based on New Mexico law, seeking to enjoin further operation of the Four Corners plant until the operators installed specified pollution control devices and complied with certain emission standards. New Mexico v. Arizona Public Service Co., Civil No. 9009, 1 ELR Dig. [189] (D.N.M., filed July 7, 1971).

Defendants have interpreted plaintiffs' demand to nullify all prior federal approvals as referring to the "retroactive" application of NEPA. Defendants argue, in essence, that decisions once made are hard and fast. [1 ELR 10115] Because so many federal programs, in particular highway projects, were ongoing on January 1, 1970, the effective date of NEPA, the language of NEPA was not intended to permit immediate intervention and a moratorium pending compliance but rather a "moderate, flexible and pragmatic approach to immediate application." Pennsylvania Environmental Defense Council, Inc. v. Bartlett, 315 F. Supp. 238 (M.D.Pa. 1970). Defendants claim that courts will not apply NEPA where "critical" decisions were made prior to NEPA's enactment.

"Retroactivity" is a misleading term. No one has suggested that NEPA should actually be applied retroactively. Rather, relying on the statute itself, critics have urged NEPA's application to future or present decisions which must be made in implementing policies decided upon in the past and now part of ongoing projects. Whether or not to apply NEPA to an ongoing project is not so absolute or certain, because the act, in the words of Pennsylvania Environmental Council, supra, sets up a "pragmatic approach." The CEQ Final Guidelines of April 23, 1971, 1 ELR 46049, specifically deals with the environmental impact procedure regarding ongoing projects in § 11. The Guidelines emphasize practicality: in the first place, whether the § 102(2)(C) procedure can be applied, and secondly, whether to reassess the "basic course of action." The only standard to define "practicable," as used in the Guidelines, is whether or not funds have been appropriated or construction has begun. Texas Comm. on Natural Resources v. United States, 1 ERC 1303 (W.D. Texas 1970). Interior Department guidelines for complying with NEPA, 1 ELR 46031, specify that ongoing programs significantly affecting the environment, authorized prior to January 1, 1970, must be reconsidered, the alternatives assessed, and 102 statement procedures followed. Previous federal approvals in the Four Corners projects specifically come under this provision, because they involved leases, permits and "entitlements to use." These guidelines do not require that the projects be halted pending the environmental consideration, but once inflicted, it is difficult to see how much of the ecological damage can be prevented, though some of it might be repaired.

Secretary Morton has recognized the need to reassess the "basic course of action" of the whole power development scheme in the Southwest, because he has appointed a panel of Interior Department experts to undertake this precise assignment. If, as Secretary Morton indicates, it is practical to reconsider the entire plan, prior federal approvals of incremental steps will not be safe from eventual nullification if approval of pending requests would cause an ecological disaster. No great amount of federal funds have been appropriated and no federal construction has begun in order to create an inflexible commitment to grant the subsequent federal approvals needed to complete the project. The application of recently enacted environmental protection statutes to ongoing projects launched prior to passage of the legislation is also discussed elsewhere in these Comments, see 1 ELR 00000.

Plaintiffs' demand for a regionally oriented 102 statement assessing the proposed project's cumulative effect is more in line with the intent of the Guidelines than Interior's task force study, despite its high intentions. The study panel is not legally compelled to inquire into alternatives as is the preparer of the 102 statement. The activity is development of coal-burning electrical generating plants, yet no study of the region has considered the use of such alternatives as solar energy or non-polluting nuclear reactors. The May 27 press release announcing Interior's study said that other departments would be consulted, yet the study group is entirely composed of Interior Department officials. NEPA requires that government agencies take an interdisciplinary approach in planning and decision-making which would include out-of-agency expertise.See Peterson, An Analysis of Title I of the National Environmental Policy Act of 1969, 1 ELR 50035, 50040-41 (1971). Private parties, such as the plaintiffs conservation groups, simple do not have the financial ability to make the comprehensive study needed for the environmental impact of future coal-burning power plants being built in the Southwest. The federal government on the other hand does have the expertise and resources necessary for this task.

Defendants challenge the need for a regional, cumulative 102 statement because individual statements are already being filed. These small-scale statements, however, do not cover "the overall cumulative impact of the action proposed (and of further actions contemplated). … Federal decisions about a project or complex of projects can be individually limited but cumulatively considerable." CEQ Final Guidelines § 5(b), 1 ELR 46049. The action to be taken is not merely the granting of a right-of-way for a single coal-hauling railroad or a power transmission line but includes the strip-mining of Black Mesa and the environmental impact of the generating plant itself. Case-by-case studies would not give an overall view of the effects of several federal decisions on such an ecological unity as the Colorado River system. The environmental effects of the necessary federal decisions are wide reaching, if for no other reason, because federal approval is absolutely necessary to carry out the full development plans of the private utilities. Furthermore, the utilities themselves, making up the Western Energy Supply and Transmission Associates, are taking a regional approach in coordinating their development plans. In [1 ELR 10116] a case involving the Alaska pipeline, the court found that a request for a permit to build the pipeline could not be separated from the over-all issue which included the haul road and its environmental impact. Wilderness Soc'y v. Hickel, 1 ELR 20042 (1970).

Plaintiffs argue that the Interior Department is the "lead agency" for filing the 102 statement. Under § 3 of Interior's guidelines, 1 ELR 46031, individual agencies are given the responsibility for the statements, but § 5(C) requires designation of a lead agency to file a cumulative environmental statement "when one or more agencies over a period of years put into a project individually minor but collectively major resources, when one decision involving a limited amount of money is a precedent for action in much larger cases or represents a decision in principle about a future major course of action . …" 1 ELR 46032. Though the Bureaus of Indian Affirs, Land Management and Reclamation may make individual decisions, clearly the Secretary of the Interior is the officer concerned with the over-all impact of the power generating plants.

The question remains whether a single governmental department should provide the final environmental statement. NEPA speaks of "the responsible Federal official," whereas the "lead agency concept" comes only from the CEQ Final Guidelines. If several agencies must make key decisions in one project, e.g., the FPC, Agriculture and Interior in a hydro-electric project, NEPA on its face appears to require 102 statements on the impact of each proposed federal action. Such fragmentation does to some extent run counter to NEPA's overall purpose of forcing the federal government to think about the totality of the environmental effect of its activities. However, what is gained by designating a lead agency may be lost by limiting the other agencies to a mere commentary, with a short time to prepare it and none of the guarantees which the courts are gradually building into the full 102 procedure. Each department and sub-agency contemplating action requiring a 102 statement under NEPA would consider alternatives to the action, as well as cumulative and long-term effects, assuming it looked beyond its narrow field of expertise. CEQ Final Guidelines § 6, 1 ELR 46050. Resolution of conflicts between the several 102 statements prepared could be extremely complex, but the task might well present more alternatives backed by more detailed analysis.

Other federal agencies "with jurisdiction by law or special expertise with respect to any environmental impact involved" are required to comment on another agency's action, but the initiative lies with the agency making the decision. NEPA § 102(2)(C), 1 ELR 41010. No indication yet has been given as to the extent of information required in this comment. Could this comment be held to the comprehensive standards required in the 102 statement itself? Could the adequacy of an agency's comment be challenged as has successfully been done with the adequacy of the 102 statements? Wilderness Soc'y v. Hickel, 1 ELR 20042 (1970), and Environmental Defense Fund, Inc. v. Corps of Engineers, 1 ELR 20130 (1970-71). Since comments of other agencies are part of the record for any governmental decision, could an agency action be challenged as inconsistent with the recommendations of another agency and an abuse of discretion? Citizens to Preserve Overton Park, Inc. v. Volpe, 1 ELR 20110 (1971). The CEQ Final Guidelines allow agencies to require comment in only 45 days. Failure to comment is interpreted as no comment. In such an enormously complex project as the Four Corners program, the Guidelines seem inadequate to compel a comprehensive federal overview of the cumulative environmental impact.

In asking for an adversary-type administrative hearing on the draft environmental statement, plaintiffs are attempting to ensure that the record is complete and assumptions about minimal environmental impact are not easily made. The Interior Department study will take public statements, but no opportunity for comment or challenge exists after final conclusions are drawn. Plaintiffs want an opportunity to question the validity of findings and conclusions before a final decision in made through the introduction of direct evidence and cross-examination of government officials. Guidelines for this relief are inconclusive. Federal agencies have been ordered to ensure that the public receives as much information as practicable about the environmental impact of federal programs, with the idea of eliciting public comment, and procedures should include public hearings where appropriate. Executive Order 11514, § 2(b), 1 ELR 45004 (1970). Interior Department guidelines provide for public hearings only where "appropriate," but there is no provision for public comment after the draft statement has been filed. 1 ELR 46033. CEQ's Final Guidelines make the only reference to public comments after preparation of the draft, in § 10(e), when agencies which hold hearings on proposed actions must make the draft statement available to the public at least 15 days before the hearing, unless the hearing will provide the basis of the draft statement itself. 1 ELR 46051.

Before plaintiffs can have their motion heard for a preliminary injunction against federal approval of pending requests for permits, rights-of-way, etc., the Intervenors and Transfer motions must be heard. Judge Pratt of the District Court for the District of Columbia will be on vacation until August 2, and by stipulation the parties agreed to wait for his return. Some study of the environmental impact of the Four Corners projects on the region will be forthcoming, but it may only be the Interior Department's study which will not be ready for a year and which, unless federal acquiescence is halted, may come too late for the government to prevent an irreversible encroachment on the unique environment of the Southwest.