### 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. l We 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.

1Two 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, "NationalFramework 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. 928-871-6177Taking 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. 3 The 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