NAVAJO NATION DEPARTMENT OF JUSTICE 

. OFFICE OF THE ATTORNEY GENERAL 

HARRISON TSOSIE DANA L. BOBROFF 

ATTORNEY GENERAL DEPUTY ATTORNEY GENERAL 

[ifI_\o 11 0 

August 15, 2014 

Ms. Regina McCarthy 

Administrator 

U.S. Environmental Protection Agency 

William Jefferson Clinton Building 

1200 Penns.ylvania Avenue, N.W. 

Mail Code: 1101A 

Washington, DC 20460 

RE: Navajo Nation Statements on EPA's Anticipated Proposed Supplemental Rule for 

Tribes under the Clean Power Plan 

Dear Ms. Regina McCarthy: 

The Navajo Nation ("Nation") talces this opportunity to provide statements regarding the 

U.S. Environmental Protection Agency's ("EPA") Proposed Supplemental Rule for Tribes under 

the Clean Power Plan, which yet to be published in the Federal Register. Further, the Nation 

requests that EPA conduct meaningful discussions with the Nation prior to the development and 

release of the anticipated supplemental EPA proposal. 

Although the EPA has not yet published emission reduction goals for Indian country, the 

Nation would expressly like to see a portrayal of the Nation's interests and anticipated goals 

reflected in the proposed Supplemental Rule for Tribes under the Clean Power Plan. lWe 

understand that EPA is currently developing the supplemental rule and intends to publish a 

proposal, possibly as early as September 2014. EPA has specifically expressed its intent to work 

with tribes prior to establishing emission reductions for Indian country. 2 EPA has also committed 

to developing a federal plan, or allowing authorized tribe to develop tribal plans to meet emission 

reduction goals. 

1 Two electrical generating units ("EGU's") are located within the Navajo Nation: Navajo Generating Station and 

Four Corners Power Plant. 

Z 79 Fed. Reg. at 39893 ("The EPA does plan to establish CO 2 emission goals for both Indian Country and territories 

in the future. The EPA plans to conduct additional outreach before setting these goals."); EPA Fact Sheet, "National 

Framework for states," http://www2.epa.gov/sites/production/files/2014-05/documents/20140602fs-settinggoals.pdf. 

P.O. Box 2010 • Window Rock, Navajo Nation (AZ) 86515 • 928-871-6347/6210 • Fax No. 928-871-6177 
Taking EPA's assurances to heart, the Nation has embarked on an unprecedented and 

historical undertaking whereby the Nation, including the Navajo Nation Environmental 

Protection Agency, has teamed up with its tribal enterprises, including the Navajo Tribal Utility 

Authority, Navajo Transitional Energy Corporation and the Navajo Nation Oil r and Gas 

Company, to determine a course of action that will be in the best interests of the Navajo Nation 

as a whole in terms of its environmental, economic and cultural future in response to EPA's 

proposed supplemental rule. 

On July 15, 2014, the Nation conveyed its request for a Government-to-Government 

consultation in accordance with Executive Order 13175, Consultation and Coordination with 

Indian Tribal Governments and the 1984 EPA Policy for the Administration of Environmental 

Programs On Indian Reservations, to discuss facets of the Clean Power Plan for Existing Power 

Plants, and the anticipated supplemental EPA rulemaking for Tribes. 3The Nation has since been 

informed that a Government-to-Government consultation meeting has been scheduled to occur 

on September 15, 2014 in Santa Fe, New Mexico. The Nation appreciates the scheduling of a 

consultation in September. By separate letter to Janet McCabe, Acting Assistant Administrator, 

EPA, Office of Air and Radiation, the Nation will confirm our participation in this meeting. 

While the Nation appreciates EPA scheduling this meeting, we are extremely concerned 

that EPA may release this supplemental rule as early as next month. Such a supplemental rule 

should not be developed and published without EPA conducting its consultation with the Nation. 

This is especially true in light of similar assurances prior to EPA's release of the MACT rule. 

The Nation specifically requested meaningful consultation with EPA in an August 4, 2011 letter 

from Stephen B. Etsitty, Executive Director, Navajo Nation Environmental Protection Agency. 

The end result is what the Nation categorizes as an insincere outreach attempt by EPA prior to its 

issuance of the MACT rule. 

Therefore, the Nation respectfully requests that EPA refrain from releasing a 

supplemental rule for tribes until the Nation has had met with EPA September 15th and provided 

meaningful comments on such a proposed rule and the EPA has the opportunity to meaningfully 

reflect on and incorporate the Nation's comments into a supplemental rule. The Nation expects 

comments to be submitted to EPA at the end of September 2014. 

The Nation appreciates the opportunity to participate in a meaningful discussion with EPA 

on the anticipated EPA Supplemental Proposed Rule for Tribes under the Clean Power Plan. 

Any questions concerning this letter should be directed to Stephen Etsitty at 928-871-7800, 

stephenbetsitty@navajo-nsn.gov . 

3 As recognized in E.O. 13175, "the United States has a unique legal relationship with Indian tribal governments as 

set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions:" E.O. 

13175, 65 Fed. Reg. at 67249. Accordingly, every federal agency "shall have an accountable process to ensure 

meaningful and timely input by tribal officials in the development of regulatory policies that have tribal 

implications." Id. At 67250. As EPA also recognizes, EPA shares "the federal government's trust responsibility, 

which derives from the historical relationship between the federal government and Indian tribes..." USEPA Policy 

on Consultation and Coordination with Indian Tribes (May 4, 2011). 

2 
Sincerely, 

THE NAVAJO NATION 

t~nccu ~ ivc Lucc ~ vi 

Navajo Nation Environmental Protection Agency 

arrison Tsosie 

Attorney General 

Navajo Nation 

Cc'd: (Via Email) 

Janet McCabe, Acting Assistant Administrator, EPA, Office of Air and Radiation