Hopi Tribe v. U.S. Environmental Protection Agency
2017 U.S. App. LEXIS 4888
| 9th Cir. | 2017Background
- The EPA promulgated a Federal Implementation Plan (FIP) under the Clean Air Act to address regional haze from the Navajo Generating Station (NGS), a coal-fired plant whose operation affects visibility at the Grand Canyon.
- The FIP followed a multi-year process (ANPRM 2009 → NPRM 2013 → Supplemental Proposed Rule 2013 → Final Rule 2014).
- A Technical Working Group (TWG) led by the utilities proposed an emissions cap and a 2044 closure trigger; the Hopi Tribe was not a TWG member.
- The Hopi Tribe receives royalties from the coal and relies heavily on NGS-related employment; the Tribe argued exclusion from TWG harmed its economic interests and that EPA failed to adequately consult.
- EPA held multiple group consultations, took comments, and held a hearing on the Hopi reservation; DOI participated in TWG negotiations but was not a party to Hopi’s petition.
- EPA treated the TWG proposal as a BART alternative and did not apply the five-factor BART analysis to that alternative.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA’s exclusion of Hopi from TWG violated a government duty to consult | Hopi: EPA (and the U.S.) had a trust-based duty to consult and should have included Hopi in TWG negotiations | EPA: EPA conducted multiple consultations, hearings, and solicitations of comment; exclusion from TWG did not mean lack of consultation | Court: Denied—EPA adequately consulted; any alleged DOI duty not before the court because DOI was not a party |
| Whether the U.S. must prioritize tribal interests over other parties under the trust relationship | Hopi: Trust requires placing Tribe’s interests above others in regulation affecting off-reservation resources | U.S.: Must follow statutes and regulations; no special rule to advantaged treatment beyond statutory compliance | Court: Rejected Tribe’s broad claim; United States need not regulate off-reservation resources to maximize a tribe’s interests (citing precedent) |
| Whether EPA erred by not applying the five-factor BART analysis to the TWG alternative | Hopi: EPA should have applied the five BART factors before accepting TWG alternative | EPA: The five-factor analysis is required only for BART; BART alternatives are governed by separate regs requiring greater reasonable progress | Court: Held no error—CAA requires five-factor BART analysis only for BART, not for BART alternatives like the TWG proposal |
| Whether EPA’s rulemaking process procedurally failed to involve necessary parties (e.g., DOI) | Hopi: Process that excluded key participants (TWG membership) was procedurally defective | EPA: EPA consulted and DOI participated in TWG; Hopi failed to name DOI as a defendant so agency conduct of DOI is not reviewable here | Court: Process not defective as to EPA; any DOI-related claim not properly before the court |
Key Cases Cited
- Seminole Nation v. United States, 316 U.S. 286 (recognition of general trust relationship between U.S. and tribes)
- Cent. Ariz. Water Conservation Dist. v. EPA, 990 F.2d 1531 (upholding use of BART alternatives under regulation)
- Gros Ventre Tribe v. United States, 469 F.3d 801 (United States not required to regulate off-reservation resources to serve a tribe’s best interests)