DENVER A federal court has dismissed an Australian mining companys appeal of a decision that required greater scrutiny of its plans to expand a coal mine next to the proposed Desert Rock Power Plant in New Mexico.
BHP Navajo Coal Company has been working to expand its Navajo Mine since 2004, but opponents sued the federal government in 2007, claiming regulators did not do a thorough analysis of the social and environmental effects.
The plaintiffs, Dine Citizens Against Ruining Our Environment and the San Juan Citizens Alliance, won the case in U.S. District Court in 2009 when Judge John Kane ordered the federal government to perform a more thorough analysis.
But BHP appealed to the 10th Circuit Court of Appeals. On Aug. 26, a three-judge panel decided it was too early to hear the appeal.
The mine sits near the proposed Desert Rock Power Plant outside Farmington. The Environmental Protection Agency revoked Desert Rocks air permit in 2009, and plant owners currently lack the permits to begin building.
The same groups that oppose Desert Rock have taken issue with the BHP mine expansion.
The environmental impacts of BHPs permanent disposal of tens of millions of tons of coal combustion waste as minefill has never been adequately analyzed, said Anna Frazier of Diné CARE in a written statement. Mercury and selenium are now poisoning native fish species in the San Juan River and the U.S. Fish and Wildlife Service has identified mining as one possible source.
Kane ordered federal regulators to try again on a more thorough environmental study, and such decisions can be appealed only if the issues are urgent, the 10th Circuit judges said.
In this case, although the issues may be important (an issue we need not decide), they are not urgent, said the opinion by Circuit Judge Terrence OBrien.
The mines parent company, BHP Billiton, released a statement saying the company is complying with Kanes order for a more thorough environmental review.
BHP Billitons New Mexico Coal operations have an overriding commitment to protect and care for the environment. We have been recognized and awarded for our reclamation work in the region by both the federal government and environmental organizations, the statement said.
The matter could find its way back to district court or the appeals court after the environmental review is done.
Reach Joe Hanel at joeh@cortezjournal.com.