The state of New Mexico filed a brief with the Washington, D.C.-based Environmental Appeals Board appealing the air permit granted July 31 to Desert Rock Power Plant.

The appeals board can remand the permit if it agrees with the state's arguments.

"The EAB can and should send this permit back to the EPA with an order to re-evaluate specific issues that we have outlined in our brief," Attorney General Gary King said. "The EPA has a legal obligation to give New Mexicans the full protections afforded to them under the Clean Air Act."

Slated for eventual construction near Burnham on the Navajo Nation, the plant is being paid for by Sithe Global, LLC and will be operated by Diné Power Authority. It is supported by Navajo President Joe Shirley Jr. and the Navajo Tribal Council.

Among its detractors are conservation/environmental groups, such as San Juan Citizens Alliance, and Navajo groups that include Diné Citizens Against Ruining the Environment (Diné CARE) and Dooda Desert Rock. The groups already are appealing the Environmental Protection Agency decision.

Neither San Juan Citizens Alliance nor Diné CARE returned a telephone voice mail message requesting their comments late Thursday.

The state's 80-page brief centers around the EPA's failure to follow the Endangered Species Act, its failure to properly analyze emissions of hazardous pollutants that include mercury and its improper consideration of Desert Rock's expected carbon dioxide emissions.


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Assistant Attorney General Seth Cohen, who worked on the legal brief, said arguments fall into seven categories:

  • "The Endangered Species Act makes it very clear that EPA needs to assess the impacts of this plant on endangered species before the permit is granted. Desert Rock pushed the EPA to act before the consultation was done."

  • "EPA failed to consider a particular pollution control technology called integrated gassification combustion cycle, which turns coal into gas before it burns. It's a lot cleaner process."

  • "EPA completely ignored the Clean Air Act's inclusion of carbon dioxide as a pollutant. EPA needs to evaluate the plant's carbon dioxide emissions, and use the best available technology to control it."

  • "The Clean Air Act also requires EPA to control mercury and other hazardous materials emitted by the plant. It was a mistake to issue the permit before assessing them."

  • "EPA relied on outdated ozone data about San Juan County, using 2002 data. The actual data the state has is that ozone levels there are much higher."

  • "EPA grandfathered the plant into applying PM10 standards to the plant's particulate emissions. It should have used a newer PM2.5 standard, but didn't look at it."

    The two measurements of particulate matter refer to the size of the specks emitted, measured in microns, which equal one-millionth of one meter.

  • "The Clean Air Act mandates the protection of Class 1 areas like the Grand Canyon and Mesa Verde's air quality. Instead of assessing the effects of the plant's emissions on them, EPA struck a vague memorandum of understanding with the managers of those parks."

    Regarding sulfur dioxide emissions, the legal brief filed in Washington states, "EPA seems to believe that whatever a federal agency puts in a permit is automatically federally enforceable."

    "A permit condition is not enforceable if it does not impose enforceable requirements," the brief states.

    Jeff Holmstead, who heads Washington, D.C.-based Bracewell & Giuliani's Environmental Strategies Practice and is a former EPA air administrator, called the state's brief "long on words but short on substance."

    "It looks like the state has simply compiled a list of all the arguments that environmental activists have invented over the last few years in order to block or delay the construction of any new coal-fired power plants," Holmstead said.

    Bracewell & Giuliani represents Sithe Global, LLC, the entity paying to build the 1,500 megawatt, pulverized coal-burning power plant.

    Frank Maisano, the legal firm's spokesman, said the state's arguments are "the same old story of the governor and attorney general saying no' to Navajo jobs, Navajo revenue and Navajo sovereignty."

    Opponents, however, long have argued that air quality in San Juan County and over portions of the Navajo Nation already is in need of improvement and that adding a new coal-fired power plant will only do more harm.