This story was originally published by the Arizona Mirror

When Hualapai Spiritual Leader Frank Mapatis visits Ha’Kamwe’, the tribe’s sacred spring, to conduct any type of ceremony, the area must be completely quiet so that he can hear the water and connect with the land.

Mapatis said that as part of his traditional ways of life, when he is in prayer at Ha’Kamwe’, he hears the water sing, and when it sings, he connects with the creator to conduct ceremonies.

He has provided purification, healing and coming-of-age ceremonies at Ha’Kamwe’ for decades and visits the spring at least twice a month. The spring is also utilized for tribal members’ funeral ceremonies.

Not being able to hear the water, conduct ceremonies or provide traditional teachings to the Hualapai youth who join him during his visits to the spring are among Mapatis’ top concerns for the proposed exploratory drilling lithium project in the Big Sandy River watershed near the tribe’s sacred spring.

“It would stop me from doing ceremony,” he said about the drilling project as he testified in federal court on Sept. 17. He believes drilling in that area will traumatize the earth and water, and he would not want to use that area for ceremonial purposes due to that trauma.

Mapatis said he could continue his ceremonial practices in other places, but they would not have the same impact as doing them at Ha’Kamwe’ because of the water’s healing properties.

“It wouldn’t be as effective in other areas,” he added.

Ha’Kamwe’ is featured in tribal songs and stories about the history of the Hualapai people and their connection to the land. According to the tribe, the historic flow and spring temperature are essential for its traditional uses.

Mapatis was one of several Haluapai tribal members who testified during the Sept. 17 preliminary injunction hearing at the U.S. Federal District Court in Phoenix, where the tribe is fighting to extend the pause on drilling for the Big Sandy Valley Lithium Exploration Project for the duration of the tribe’s lawsuit seeking to block the project entirely.

The project allows a mining company to drill and test more than 100 sites across BLM land surrounding one of the Hualapai Tribe’s cultural properties, among them Ha’Kamwe’, a medicinal spring sacred to the tribe.

Tuesday’s hearing came after a federal judge granted the Hualapai Tribe’s request for a temporary restraining order against the U.S. Bureau of Land Management, temporarily freezing the exploratory drilling project. 

The restraining order was granted weeks after the Hualapai Tribe filed a lawsuit against BLM, following years of the tribe actively voicing its concerns about the mining effort.

Ha’Kamwe’ is located within the Hualapai Tribe’s property known as Cholla Canyon Ranch, and the boundaries of the Big Sandy Valley project nearly surround the entire property. Only one portion of the tribe’s land does not border the drilling project.

The spring is recognized as a traditional cultural property and is eligible to be listed on the National Register of Historic Places, and the tribe’s lawsuit claims that the project’s approval violates the National Environmental Protection Act and the National Historic Preservation Act. 

The lawsuit asks for full compliance with the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA), which includes having the BLM take a “hard look” at the exploration activity’s environmental impacts and consider the implications of its actions on historic properties.

The lawsuit claims that BLM approved the mining project without appropriately considering a reasonable range of alternatives or taking a hard look at water resources under the NEPA and moved forward with the project without providing mitigation measures under the NHPA for Ha’Kamwe’ and other resources essential to the tribe, thus violating both acts.

Out of concern for Ha’Kamwe’, the tribe submitted multiple public comments, sent several letters of concern, and participated in tribal consultations with BLM throughout the Big Sandy Valley Lithium Exploration Project planning phase. 

Big Sandy, Inc., a subsidiary of Australian mining company Arizona Lithium, leads the project and has sought approval since 2019.  Arizona Lithium is not a direct party in the Hualapai Tribe’s lawsuit, but it filed a motion to intervene in the case. Humetewa granted the request in August, allowing the company to defend against the tribe’s efforts to stop the project.

BLM’s approval of the Big Sandy Valley Project allows the mining company to drill and test up to 131 exploration holes across 21 acres of BLM-managed public land to determine whether a full-scale lithium mining operation could be viable. 

‘How we connect to our ancestors’

Throughout the hearing, several Hualapai tribal members and supporters sat in the courtroom listening to the hearing while others sat outside the Sandra Day O’Connor courthouse holding signs backing the tribe.

Hualapai tribal member Ivan Bender, 60, from Peach Springs, showed up to the courthouse in support of his community, carrying a flag that said, “Protect Ka’kamwe’. No lithium mining.”

“That spring has a life of its own,” Bender said. “The water source we’re trying to protect is part of our sacred waters.” 

The preliminary injunction hearing lasted more than six hours, during which Judge Diane Humetewa heard witness testimony from all parties involved in the case as she weighed the tribe’s request to keep the drilling on hold. 

Testimony surrounded the way the project would directly or indirectly impact the Hualapai Tribe’s ability to carry out their cultural and traditional ways of life at Ha’Kamwe’, and whether the drilling that will take place as part of the project will harm the water that feeds into the hot spring.

Ka-voka Jackson, the director of the Hualapai Department of Cultural Resources, was the first witness, and part of her testimony focused on how the Hualapai Tribe utilizes the area for cultural and traditional purposes — and how drilling can directly affect those practices.

Jackson told the court that tribal members often visit Ha’Kamwe for traditional practices or to gather and harvest culturally significant plants from surrounding public lands.

“That is how we connect to our ancestors,” Jackson said.

The tribe’s lawsuit states that the lithium project will create noise, light, vibrations, and other disturbances that will degrade Ha’Kamwe’s character and harm tribal members’ use of the spring for religious and cultural ceremonies.

Jackson said the project’s impacts could cause irreversible damage, affecting the water supply to the sacred springs and destroying the land.

“(It can) create a lot of negative energy and create a hostile environment,” she said.

As part of its environmental assessment, BLM listed several short- and long-term effects, including the temporary disruption to cultural practices at or near Ha’Kamwe’ and an impact on native wildlife and vegetation of up to 21 acres.

But even with these effects included in the assessment, BLM concluded that Phase 3 of the Big Sandy Valley Lithium Exploration Project would not significantly negatively impact the quality of the area, so an environmental impact statement was not needed.

“Visual, noise, and vibration effects from drilling activities would be temporary,” BLM wrote in its final report. “Coordination with and providing notice to the Hualapai Tribe of drilling activities in the vicinity of the Ha’Kamwe’ may reduce impacts to cultural practices at or near the hot spring.”

To provide the court with perspective on the distance of the drilling locations near Ha’Kamwe’, Ivan Martirosov from Navajo Transitional Energy Company testified on behalf of the defendants. 

Martirosov is the project manager for the Big Sandy Valley Lithium Exploration Project with Navajo Transitional Energy Company (NTEC), a mining and energy company owned by the Navajo Nation. 

NTEC entered into a mining agreement with Arizona Lithium in March. Under this agreement, the Navajo-owned company is responsible for permitting, exploration drilling, mine design, environmental assessments and development for the Big Sandy Lithium Project. NTEC has worked with Arizona Lithium since December 2022.

Martirosov is in charge of overseeing and executing the Big Sandy Lithium Project. He told the court that he walked all approved drilling sites on foot and described the site’s proximity to the Hualapai’s cultural property.

Of the 131 drill sites approved for the project, Martirosov identified 22 with a line of sight to Ha’Kamwe’, a majority located on the north side. 

Martirosov said that he was restricted from accessing Ha’Kamwe, noting that the drill sites that do not have a line of sight of the cultural property were due to distance and terrain.

BLM: Concerns are ‘overblown’

At the end of the day-long hearing, Humetewa ordered all parties to file briefs outlining their arguments for why the injunction should or shouldn’t be granted. She said she would issue a ruling in the near future. 

During the hearing, Humetewa said that she was tasked with determining what process BLM took in connection to NEPA and their Section 106 process.

The Section 106 process seeks to accommodate historic preservation concerns through consultation among an agency official and other parties interested in the undertaking’s effects on historic properties. The consultation aims to identify historic properties potentially affected by projects and seek ways to avoid, minimize, or mitigate any adverse effects.

The process is usually conducted in four steps: initiating it, identifying historical properties within potentially affected areas, assessing any potential adverse effects on any eligible historic property, and seeking to resolve any adverse effects.

Humetewa said in court that she wants to know where in the records she can find BLM’s engagement in those processes so she can fully understand the discussion about either approving or denying the project. That way, she said, she can understand what considerations went into the final environmental assessment and the NEPA assessment.

Earthjustice Senior Attorney Laura Berglan, who is part of the team representing the Hualapai Tribe, said she feels positive because their team presented all the points they wanted.

“I think it went well and we’ll see how it turns out,” she added.

BLM’s attorneys told Humetewa that the impacts this project will have on Ha’Kamwe have been “vastly overblown,” noting how their expert clearly testified that the water and temperature will not change due to the drilling in the project.

The tribe had its own expert testify. Winfield G. Wright, a certified hydrologist and president of Southwest Hydro-Logic, said he produced a report for the tribe about the water sources that feed into Ha’Kamwe’. Wright said his analysis found that the groundwater system that flows into the hot spring is very fragile, and any disturbances around the area can disrupt the water, the chemistry and the temperature.

Wright said a mixture of shallow and deep waterways feed into Ha’Kamwe’, and the BLM’s environmental assessment simplified identifying where the water comes from by saying a confined lower aquifer feeds it.

“It’s not a confined aquifer,” he said, noting that the lower aquifer in the Big Sandy Valley is not the only source of water for the spring. “The whole valley is connected because of the fractures.”

But Peter Burck, a hydrologist with the BLM, testified that the lower fractures of the lower aquifer are a more likely source of water for Ha’Kamwe’. 

Burck said that Wright’s claim the water comes from multiple sources is not conclusive. He said he did not see anything in Wright’s report that would lead him to conclude that the spring water source is a mixture of multiple flows.

He said that the likelihood of the drilling from Phase 3 of the Big Sandy Lithium Project encountering water or affecting the temperature of Ha’Kamwe’ is low.

BLM also told the court that any visual and noise disturbances from the drilling does not qualify as irreparable injury and is instead temporary. 

But Jackson said her tribe made a good case that the project would cause irreparable harm because they had people testify who had already experienced it.

“This is irreparable; you can’t go back and redo ceremonies,” she said. “There’s no such thing.”

Jackson said she understands that the court wants more clarification on whether or not the BLM took the appropriate steps under the NEPA and NHPA policies before making a final decision.

“We believe that they didn’t take into consideration the effects on Ha’Kamwe’,” Jackson said, adding that it is eligible for registration on the National Historic Register and a traditional cultural property.

Jackson said it deserves a thorough process included in the NHPA and NEPA. 

“I am proud of our people for sticking up for what we believe in and asserting our arguments,” she said. “Now, we just wait.”

Hualapai Chairman Duane Clarke echoed Jackson’s sentiments about how their team and tribal members presented a good case in court, and said he prays that the court’s decision goes with the Hualapai people.

Arizona Attorney General Kris Mayes filed an amicus brief before the hearing supporting the Hualapai Tribe’s request for the preliminary injunction. 

“The sacred Ha’Kamwe’ spring has sustained the Hualapai people for generations, and its protection is critical for the Tribe,” Mayes said in a written statement. “The failure to properly evaluate the impact of this project on such an important water source is unacceptable.”

The amicus brief urges the court to take action to protect Arizona’s water resources from potentially irreversible damage posed by exploratory drilling near the Hualapai Tribe’s sacred spring.

“The BLM must fulfill its obligations under NEPA and fully evaluate this project’s impact on local water resources,” Mayes said. “I am proud to support the Hualapai Tribe’s efforts to protect their precious cultural and water resources.”

The amicus brief highlights the risk of irreparable harm to Arizona’s water resources if exploratory drilling is allowed to proceed without a comprehensive review. It also requests that the court grant a preliminary injunction to stop drilling activities while the case is being heard to protect Arizona’s water sources from potential compromise.

Hualapai Tribe fights to extend ban on lithium drilling it says jeopardizes a sacred site is an article from Energy News Network, a nonprofit news service covering the clean energy transition. If you would like to support us please make a donation.

The U.S. EPA on Wednesday denied six coal plants’ requests to keep dumping toxic ash into unlined or inadequately lined pits, signaling the agency’s commitment to enforce the 2015 federal coal ash rules that had been widely flouted by companies and ignored by regulators.

The rules say that pits without legally compliant liners needed to stop receiving coal ash by April 2021, but many companies continued dumping ash in such pits and ponds, with more than 60 seeking extensions to the deadline. The EPA began a series of enforcement actions last year.

The six plants covered by the new decisions had argued they should not have to meet the deadline since naturally occurring clay, archaic liners or other conditions made their pits essentially as safe as impoundments with modern liners. In its denials, the EPA cited holes in the companies’ arguments about the pits’ safety and faulted the companies for failing to comply with other provisions of the rules.

“While of course it’s site-specific and they’re limited to these six applications that were before the agency, it does show EPA is taking a really close look at compliance with the rule,” said Sierra Club senior attorney Bridget Lee. “They’re going through the applications carefully, looking at everything at these sites. Highlighting all the places where the owners and operators have gone wrong is a really important step.”

Extensions to the 2021 deadline were denied at DTE’s Belle River and Monroe plants in Michigan; the Coal Creek station in North Dakota; the Conemaugh plant owned by Talen Energy near Pittsburgh; the publicly-owned Salt River Project’s Coronado Generating Station amid Native American reservations in Arizona; and the Martin Lake Steam Electric Plant in eastern Texas. 

The Apache Generating Station in Arizona was granted an extension, on the condition it improves groundwater monitoring meant to check for pollution from coal ash.

The ash pits will have to close after going through a public comment period and final EPA decision, assuming the EPA upholds their recent orders in final rulings. The decisions do not mandate how the pits must be closed, but the federal rules say coal ash repositories cannot be closed with ash contaminating groundwater, and the recent decisions would seemingly indicate that the companies could not legally leave the ash in place in these unlined or poorly lined pits. 

Lee noted that by the time the pits actually close, it will be more than two years beyond the original April 2021 deadline.

“So the communities located near these ponds have definitely been waiting too long for this action,” she said. “But we applaud EPA for it and we are happy to see this first step.”

A long road

Last year, the EPA denied extension requests for a number of plants that argued they needed more time to stop sending waste to pits because they had nowhere else to place the waste and the coal plant would need to close; or they planned to close the coal plant soon and wanted to keep depositing ash to the end.  

Environmental advocates hailed those decisions, starting in January 2022, as evidence the EPA is finally taking the federal rules seriously, as the Energy News Network chronicled last year in an investigation of the toll of coal ash nationwide.

However, there are more than 500 coal ash impoundments nationwide covered by the federal rules, and environmental groups’ recent analysis of data reported by companies for almost 300 sites found groundwater contamination at more than 90% of them.   

“The vast majority are not doing anything to clean it up,” said Thomas Cmar, a senior attorney for Earthjustice, which produced the report on groundwater contamination along with the Environmental Integrity Project. 

“It is heartening to see that EPA is taking steps to hold power plants accountable, but more follow-up and enforcement is needed everywhere,” Cmar continued. “I do hope that some companies read these additional decisions from EPA, see the writing on the wall, and begin to clean up their act. But unfortunately, what we have seen throughout the country is that violations of the coal ash rule are so widespread that a lot of enforcement is going to be needed — by EPA, states, and local groups filing lawsuits.”

Flawed compliance

In denying the extensions, the EPA cited various failings at each plant in showing that the coal ash pits with no liners or archaic liners were not causing harmful groundwater contamination.

At the Coal Creek plant, the EPA tested samples of a liner installed in 1991 and repaired multiple times. It found that the liner was thinner than current requirements and made of materials that raised concerns. The Coal Creek station was sold last year by Minnesota-based cooperative Great River Energy to Rainbow Energy LLC, and the new owner plans to keep running the plant, attempting carbon capture and sequestration, rather than retiring it as previously planned. 

The EPA also said companies failed to prove groundwater was monitored rigorously enough to detect contamination should it occur. The 2015 rules lay out detailed requirements for ongoing groundwater monitoring around coal ash impoundments, but critics argue companies regularly find ways to avoid showing contamination, like putting monitoring wells in the wrong places.

The Martin Lake plant in Texas, owned by Luminant Generating Company, burns lignite coal, a particularly dirty form of coal, and stores the ash onsite. (Coal Creek also burns lignite.) 

Among other criticisms, the EPA found that the plant located its pollution-monitoring wells at least 150 feet away from where pollution would be expected to flow. 

“The application provides no explanation for why downgradient wells could not have been located at the waste boundary or at least closer to the identified downgradient boundary of the impoundment,” the decision says.  

Soil samples taken to determine where groundwater might flow were also spaced so widely apart that the company might not know all the “pathways” contamination could take, the EPA added. The EPA also criticized the company’s methods for drawing groundwater for testing, noting that: “Wells screened at an improper depth or over too long an interval can draw groundwater from far beyond the area that is initially impacted by a [contaminant] release, resulting in dilution of the sample” and “masking” possible coal ash pollution.

The EPA also argued that monitoring wells were misplaced at DTE’s Monroe plant south of Detroit on Lake Erie. Pollution from coal ash could flow into both the upgradient wells meant to provide background readings, and downgradient wells where contaminants from coal ash could flow, according to EPA.

“The application indicates that upgradient wells were knowingly installed in areas with potential to be affected by leakage from the impoundment,” EPA wrote, meaning the company could be off the hook for pollution when compared to background levels.  

Unconvincing ‘alternate sources’ 

The EPA cited evidence of potential pollution releases from the pits, and “insufficient information to support claims that the contamination is from sources other than the impoundments.”

In documents the companies are required to post publicly under the rules, the companies had argued that contamination was coming from sources other than the impoundments in question. 

At the Conemaugh plant, the company argued that groundwater contamination was caused by waste from sulfur dioxide scrubbers that had fallen off trucks on the site. The EPA wrote that it doubted this explained all the contamination, and even if it did, that raised other concerns.  

The rules don’t cover coal ash scattered on sites before the rules took effect, a widespread practice by companies that used ash to build up berms or bolster land. Environmental advocates and attorneys have long argued that such ash causes contamination that companies can then blame as a way to avoid cleaning up the pits that are covered by the rules.

The EPA has promised to add provisions covering such “legacy ash” to the rules, but so far this has not happened. Last year Earthjustice filed a lawsuit representing local groups demanding action on legacy ash.

Most of the coal plants covered by the EPA’s recent decisions are scheduled to close in coming years, and companies like DTE have emphasized their commitment to clean energy. But advocates and attorneys say no clean energy transition can be complete until the hundreds of millions of tons of coal ash stored nationwide are dealt with, including by moving it out of unlined or leaking pits.

“For decades we’ve known that our reliance on dirty coal power has huge negative effects from cradle to grave for our health, our planet, and our communities,” said PennEnvironment executive director David Masur, in a statement regarding the Conemaugh plant. “Today’s EPA announcement is a crucial step towards ending the decades-long cycle of allowing fossil fuel companies to get a free ride for the toxic pollution that they release into our air, water and surrounding environment.”

Coal ash crackdown continues as EPA denies extensions for six power plants is an article from Energy News Network, a nonprofit news service covering the clean energy transition. If you would like to support us please make a donation.

Reprinted from E&E News with permission from POLITICO, LLC. Copyright 2023. E&E News provides essential news for energy and environment professionals. 

From rooftop solar incentives to pipelines, the outcome of several gubernatorial elections this November could shift state energy policies for years to come.

At least half a dozen races for governor in 2022 are considered tossups, according to early polls and analyses.

They include races in battleground states like Nevada and Michigan, where incumbent governors seeking to reduce carbon emissions from the power and transportation sectors are facing tough reelection campaigns. In other states, such as Arizona, Massachusetts and Pennsylvania, a handful of candidates are vying for an open seat.

Nationally, incoming governors could help shape the energy sector by influencing how to spend federal dollars in the Infrastructure Investment and Jobs Act, which includes money for power lines, public transit, highways and other programs. In many states, governors are also responsible for key appointments, including directors of state energy offices and public utility regulators.

“Over the last decade, we’ve seen the majority of substantive action on climate policy happen at the state level,” said Jared Leopold, former communications director at the Democratic Governors Association and co-founder of Evergreen Action. “Governors elections are as important as any election in determining the fate of the planet.”

So far, Republican candidates in gubernatorial races have generally sought to tie high energy prices to policies supported by the Biden administration and their Democratic allies. Some have pledged to expand natural gas extraction and pipeline industries if elected governor.

In Texas, for example, incumbent Gov. Greg Abbott (R) used his Jan 10 reelection campaign in Texas’ Rio Grande Valley to tout the state’s ability to attract businesses as well as jobs created by the oil and gas sector.

“We cannot allow promoters of the Green New Deal to destroy those high-paying jobs,” he said. “One of the reasons I’m running for reelection is to secure the future of energy jobs in Texas.”

Abbott’s main Democratic challenger, former Rep. Beto O’Rourke, is hoping to use last year’s electric grid crisis in Texas to win votes. O’Rourke has blamed Abbott and the Republican-controlled Legislature for failing to fix the Texas grid after previous winter storms and saddling consumers with higher bills after the one last year.

“Our governor could not keep the lights on,” O’Rourke said during a campaign event streamed on Zoom.

Ahead of a busy election year, here’s a look at how upcoming races in four key states could transform the energy sector:

Pennsylvania: Shale gas and a ‘false choice’

No energy issue has dominated the political discourse in Pennsylvania perhaps as much as the state’s participation in the Regional Greenhouse Gas Initiative, a multistate carbon-trading program.

Term-limited Gov. Tom Wolf (D) signed an executive order in 2019 to bring the Keystone State into RGGI, which covers 11 states in the Northeast and Mid-Atlantic. Pennsylvania is the second largest energy producer and fourth biggest carbon dioxide emitter in the country, and the state’s entrance into the program has been closely watched — and hotly contested by allies of Pennsylvania’s natural gas and coal industries.

Ahead of the November gubernatorial race, most of the dozen Republican candidates vying for control of the governor’s mansion have said they would immediately take Pennsylvania out of RGGI through executive action. One candidate, current Senate President Pro Tempore Jake Corman, has championed efforts in the Pennsylvania Senate to withdraw from the program.

Presumptive Democratic nominee and current Attorney General Josh Shapiro has tiptoed around the carbon-trading initiative. Broadly, RGGI charges power plants in participating states for the greenhouse gas emissions that they emit, and states can then reinvest the proceeds in climate and clean energy initiatives.

In a widely shared statement last year, Shapiro questioned whether RGGI presented a “false choice” between retaining jobs and addressing the climate crisis, although he stopped short of saying whether he would have Pennsylvania exit the program if elected.

“We need to take real action to address climate change, protect and create energy jobs, and ensure Pennsylvania has reliable, affordable, and clean power for the long term,” Shapiro said in a statement. “As governor, I will implement an energy strategy which passes that test, and it’s not clear to me that RGGI does.”

While environmental groups were disappointed by the statement, some observers viewed it mostly as a ploy to court support from labor unions.

“He was suggesting without saying that he doesn’t necessarily support going into RGGI, particularly through the regulatory review process,” said David Zambito, chair of the Utility & Energy Practice Group at Cozen O’Connor in Pennsylvania. “Now that it appears he’s got the nomination, he’s swinging back to say he does support RGGI.”

In December, Shapiro’s office signed off on the Wolf administration’s plan to bring Pennsylvania into RGGI, despite claims from Corman and other Republicans that he could have intervened.

But lawsuits challenging the state’s participation in the program are expected to follow, meaning the issue will still be up for debate later this year, said Mark Szybist, a senior attorney in the climate and clean energy program at the Natural Resources Defense Council.

“Whether Pennsylvania participates in RGGI and how, both will be open questions during the election,” Szybist said.

In addition to opposing RGGI, Republican candidates have stressed the need to take full advantage of the state’s energy resources and criticized the Wolf administration for not doing enough to support oil and gas extraction. During the first Republican debate this month, gubernatorial candidate and Pittsburgh-based attorney Jason Richey called for building a pipeline network from western and northeastern Pennsylvania to Philadelphia, for export “around the world.”

“We need to unleash our energy,” Richey said.

By contrast, Shapiro has pledged to establish a target of net-zero greenhouse gas emissions economywide by 2050 and 30% renewable power by 2030. Meanwhile, his record as attorney general offers some clues as to how he would oversee the state’s sizable gas industry if elected.

In 2020, Shapiro’s office released a report on unconventional oil and gas drilling — i.e., fracking — that claimed to uncover the “systematic failure” of the state in protecting consumers from oil and gas pollution. If elected, Shapiro has said he would adopt the recommendations of the report, which include expanding the buffer zone between drilling operations and homes from 500 to 2,500 feet, requiring companies to publicly disclose chemicals they use in drilling and fracking operations, and regulating “gathering lines” that are used to transport natural gas.

“He’s signaled there’s an opening for new laws holding corporate polluters accountable, so I’m hopeful that he acts on that,” said Alex Bomstein, a senior litigation attorney at the Clean Air Council.

Industry critics slammed the 2020 report following its release. Still, while the Marcellus Shale Coalition called the report’s findings inaccurate and politically motivated, the group said it has and will continue to work with governors on both sides of the aisle.

Arizona

Republicans have retained control of Arizona’s governorship since 2009. But the state went blue in 2020’s presidential election, with Joe Biden defeating former President Trump in the state by about 10,400 votes.

With Gov. Doug Ducey (R) barred from running again due to term limits, Democrats see an opportunity to regain control of the governorship. Either way, the next governor could influence regional energy issues and the state’s policies on renewables, considering Arizona ranks second in the nation for solar power potential.

Still, the executive branch hasn’t played as prominent a role on energy policy as the Arizona Corporation Commission, which is sometimes referred to as the fourth branch of government.

The commission has the ability to set electric and energy policies, and it has long considered potential policies to encourage electric utilities to transition to clean energy. In a highly anticipated, 3-2 vote last month, the commission rejected a plan that would have established a target of 100% carbon-free electricity by 2070 for the state’s regulated, investor-owned utilities.

Nonetheless, clean energy advocates say they hope that the commission will introduce other initiatives in the coming months to promote a transition to renewable energy, and that whoever is elected governor will support those efforts. In addition, while the commission’s members are elected, governors can appoint new members if someone steps down before the end of their term, said Ellen Zuckerman, co-director of the utility program at the Southwest Energy Efficiency Project.

“There’s definitely an interplay there, no question,” Zuckerman said.

On the Democratic side, Secretary of State Katie Hobbs has emerged as the leading candidate for Arizona’s next governor, although state Rep. Aaron Lieberman (D-Phoenix) and former U.S. Customs and Border Protection chief of staff Marco López have also declared their candidacy. A handful of candidates, meanwhile, are competing for the Republican nomination, with former TV news anchor Kari Lake considered a front-runner following an endorsement from Trump.

Other than potentially wading into Arizona Corporation Commission debates, one step the next governor could take would be to reinstate the state’s energy office. The office was eliminated by the Ducey administration, said Bob Burns, a former Republican member of the Arizona Corporation Commission.

“Maybe the other candidates would come up with an idea to have some form of energy represented in their Cabinet, but I haven’t heard any discussions on that at this point,” Burns said.

The next governor also could take a more active role in discussions among several Western states about the establishment of a potential regional transmission organization. Such an organization could help coordinate and accelerate the development of renewable energy resources and transmission lines throughout the West, RTO backers say.

While Nevada and Colorado have enacted legislation to encourage the development of an RTO, Arizona has not taken any similar steps under Ducey’s leadership.

“It [would] … make a clear statement that the West is open for business with a modern and robust electric grid,” Steve Zylstra, president and CEO of the Arizona Technology Council, said in a statement.

Southern wild card?

In Georgia and Florida, clean energy will take a back seat to issues like voting rights, critical race theory, and social and economic issues in closely watched governors races this year. But in both states, Republican contenders have voiced support for clean energy investments and jobs, even as they’ve railed against Biden’s efforts to address climate change.

The winner of an expected bitter GOP primary in Georgia will likely face Democrat Stacey Abrams, who currently is running unopposed.

On the Republican side, former U.S. Sen. David Perdue is aiming to unseat Gov. Brian Kemp, who has been a public advocate for electric vehicles. In his January State of the State address, Kemp referenced California-based electric truck maker Rivian, which said in December that it would build a $5 billion factory on a 2,000-acre site in what’s being billed as the largest economic development project in Georgia history.

“My administration’s more recent emphasis on innovation and development in the electric mobility ecosystem has equipped our state with a new tool in the tool box to deliver big wins for hardworking Georgians,” Kemp said about Rivian in his address. Kemp’s proposed budget also includes $125 million for land and training costs for Rivian, the Atlanta Journal-Constitution reported.

Jobs tied to clean energy have been a common theme for Kemp, as multiple companies expanded their manufacturing base in Georgia in recent years. Leopold of Evergreen Action noted that Kemp “has been to a number of EV battery plant openings and solar field openings.”

Purdue has been an outspoken critic of the infrastructure bill’s climate change provisions. He also would likely support SK Battery, Rivian and other emerging clean energy businesses if elected governor, observers said.

On the Democratic side, Abrams’ push for social and economic equality could aid Biden’s energy policies in the Peach State. Abrams has widespread support from clean energy advocates and was recently named to the board of Heliogen, a California-based solar company.

Abrams was the minority leader of Georgia’s House of Representatives and made history when she became the first Black woman to be nominated by a major party to the governor’s office. She acknowledged that Kemp was governor in 2018 but did not concede to him, instead giving a fiery speech that railed against Georgia’s election system, calling for voter reform. Abrams then launched the voting rights group Fair Fight, which became a force in the most recent presidential election and in Georgia’s battleground U.S. Senate races.

During the race, environmentalists are likely to push for more aggressive clean energy policies, such as calling on the state’s electric companies to use more renewables or to operate on 100 percent clean energy in the future. Such efforts are not expected to gain traction in the GOP-controlled Legislature.

It remains unclear whether the governor and lawmakers will be asked to step in to help deal with the rising costs at the Plant Vogtle nuclear project, which currently has a price tag of roughly $28 billion.

Further south, Florida Gov. Ron DeSantis (R) has advocated for Everglades restoration, preserving the state’s pristine coastline from sea-level rise and investing in transportation electrification, all the while avoiding use of the term “climate change.”

In November, he’ll face a yet-to-be-determined Democratic nominee. The growing field is currently led by Florida’s Agriculture Commissioner Nikki Fried, former Florida Gov. and current U.S. Rep. Charlie Crist, and state Sen. Annette Taddeo.

Major energy policy in Florida is left to the Legislature, which is heavily financed by campaign contributions from the state’s investor-owned utilities. But a Democratic governor could veto any efforts from the GOP-controlled Legislature to thwart renewable energy growth, or they could support efforts that would speed up the energy transition.

Another Southern state could offer a preview of what’s to come as campaigns heat up this year, according to some observers.

Leading up to Virginia’s gubernatorial race last November, then-candidate and now-Gov. Glenn Youngkin (R) did not make energy and climate issues the focus of his campaign, said J.R. Tolbert, vice president of strategy at Advanced Energy Economy. Only after he was elected did he announce his intent to pull Virginia out of the Regional Greenhouse Gas Initiative. “It’s one more reminder of how important these elections are,” Tolbert said.

Also, Youngkin’s opposition to “mandates” during the campaign last year — be they energy mandates or mask mandates to address the coronavirus pandemic — could set the tone for GOP candidates this year, said Jason Hayes, director of environmental policy at the Mackinac Center, a conservative Michigan-based think tank.

“I think the issues you saw happen in Virginia in November and also in New Jersey have kind of shaken everything up,” Hayes said, referring to the gubernatorial race last year in the Garden State. “Youngkin being elected in Virginia kind of threw everything into a tizzy.”

Reporter Mike Lee contributed.

How governors races may change energy, from EVs to renewables is an article from Energy News Network, a nonprofit news service covering the clean energy transition. If you would like to support us please make a donation.

Arizona legislative attorneys believe a Corporation Commission policy intended to restrict campaign contributions by regulated utilities violates the Arizona Constitution, and the lawmaker who requested that opinion is hoping it will persuade the commission to change course for next year’s election.

Sen. Rick Gray, R-Sun City, asked Legislative Council to review the utility commission’s 2019 code of ethics. Specifically, he wanted the council’s opinion on whether a policy that prohibits commissioners from taking campaign contributions from regulated utilities, their employees and their lobbyists violates either the Arizona or U.S. constitutions.

Under the rule, commissioners cannot knowingly take contributions from regulated public service corporations, their lobbyists, employees or officers, nor can they accept money from any intervenor in a case that’s before the commission. The commission’s intention in passing the rule was to require commissioners to recuse themselves if they’ve taken money from people involved in cases they’re hearing. 

Legislative Council’s answer was that the commission overstepped its authority. The validity of the rules “depends on whether the ACC has authority to prevent a properly appointed or elected member of the commission from participating in ACC activities.” And Legislative Council opined that nothing in state law or the Arizona Constitution gives it such authority. The power of the commission and its individual members is enshrined in the constitution, legislative staff said, and the commission cannot limit those powers. 

Even if the commission has the authority to limit commissioners’ power, Legislative Council said that doing so based on campaign contributions may violate the First Amendment, which protects political speech, including campaign spending, under U.S. Supreme Court precedent. 

However, Legislative Council didn’t make a determination on that issue and concluded that there are “reasonable arguments on both sides” as to whether the policy violates the free speech protections in the First Amendment. They noted that the ethics doesn’t actually bar contributions to a commissioner. It requires commissioners to recuse themselves based on that spending.

“Therefore, to invalidate the limitations related to independent expenditures a court would have to find that the recusal requirement significantly impairs a person’s First Amendment right to make independent expenditures,” Legislative Council attorney Ken Behringer wrote.

Gray, Sen. Sine Kerr, R-Buckeye, and Rep. Gail Griffin, R-Hereford, sent the opinion to the commission, and they await a response. The commissioners instructed their legal counsel to draft a response for their next staff meeting on Oct. 26.

Commissioners enacted the ethics policy in 2019 in response to controversial spending by Pinnacle West, parent company of energy behemoth Arizona Public Service, in the 2014 and 2016 Corporation Commission elections.

In 2014, Pinnacle West secretly funded dark money groups that spent nearly $10.7 million to elect two Republican commissioners considered sympathetic to its interests who were running against solar energy advocates in both the GOP primary and the general election. Two years later, the company, which had thus far refused to say whether it was behind the 2014 campaign, openly spent $4 million in support of three Republicans in the general election.

Gray, who ran for the commission in 2016 and was defeated in the Republican primary, said he took aim at the ethics policy because it’s unfair and inequitable. Even if an employee wants to give a $5 qualifying contribution to help a commission hopeful get public campaign funding from the Citizens Clean Elections Commission, the ethics policy is a barrier. 

“The employees should be able to do whatever they want. If they want to give a five, they ought to be able to give fives. If they want to be able to give 160, they ought to be able to give 160,” Gray said, referring to the maximum amount of “seed money” a person can contribute to a Clean Elections candidate. 

The prohibition on campaign contributions also applies to anyone who is registered as a lobbyist with the Corporation Commission, or any entity that is represented at the commission by a registered lobbyist. That includes entities such as solar energy companies that are affected by the commission’s decisions but aren’t directly regulated by it.

APS, which faced years of negative publicity for its decision to break the longstanding unwritten rule that kept utilities out of Corporation Commission races, has sworn off spending in the elections for its regulators. It stayed on the sidelines in 2018, and in 2020, new CEO Jeff Guldner said the company would no longer spend in commission elections. 

The code of ethics doesn’t actually restrict utilities’ ability to engage in the kind of outside spending that prompted its passage in the first place. It instead requires commissioners, before they vote on a matter involving a regulated entity, to publicly disclose any such outside spending of at least $1,000 by that entity, or at least $100 by an individual. The disclosure policy applies to any spending that directly or indirectly benefits commissioners or their immediate family, not just independent expenditures in elections. 

Whether the legislature can actually do anything to influence commission policy remains to be seen. Gray said he hopes the commission will “re-evaluate” its position in response to Legislative Council’s opinion. 

If that doesn’t happen, Gray is unsure what his next step would be, or whether it’s legislation, a ballot measure or something else. 

“We’ll have to look at it. I’m not an attorney, so I don’t know what the legal consequences would be. If it needs to be challenged, it needs to be challenged. If we do not defend people’s constitutional rights, then it will evaporate,” he said.

Whatever happens with the commission’s ethics policy, things won’t change for APS. Company spokeswoman Jill Hanks said APS has no position on the ethics rules and that Guldner’s commitment to stay out of commission races stands.

It’s unclear exactly what the commission’s legal counsel will say in its response to Legislative Council. But Chairwoman Lea Marquez Peterson, a Republican, said the commissioners obviously believed they were within their rights to draft the code of ethics that’s now in place. And there were good reasons for the commission to enact it, she said. 

“When I was appointed, and even prior to that, I’d certainly heard about the cloud of corruption over the Arizona Corporation Commission and elections. So it was important to me as one of my first votes on the commission to work on the code of ethics, and then as the chairwoman to bring it back and finalize it so we could move forward,” she said.

Peterson said it would have been “legally challenging” to impose an ethics policy involving entities that the commission doesn’t regulate, such as solar companies. Because of APS’s controversial electioneering, there was a “hypersensitivity” at the commission about utility involvement in elections, to the point where they didn’t want utilities or their employees involved in commission elections. 

“There are lots of people in this state, more than 7 million, and we can certainly get support by being out in the community and visiting Rotary Clubs, chambers and different events,” Peterson said.

Democratic Commissioner Anna Tovar, who wasn’t on the commission when the original policy was implemented, also said it’s important to keep the disputed rules in place.

“It offers that transparency and accountability that our constituents are seeking, of where did funds come from for our campaign,” Tovar said. 

Legislative Council’s opinion regarding forced recusal may be a moot point. 

According to Wesley Van Cleve, the commission’s assistant general counsel, the ethics code doesn’t actually require anyone to recuse themselves from anything if they knowingly take a prohibited contribution. The code of ethics states that commissioners “shall not” accept prohibited contributions, but it doesn’t explicitly specify any enforcement mechanisms. Van Cleve described it as an “honor code” situation.

“It’s voluntary. The code is there for the commissioners to essentially police themselves, if you will. One commissioner couldn’t require recusal of another commissioner. And they can essentially volunteer to recuse themselves or not,” Van Cleve said.

Van Cleve said the only situation in which recusal would be required by the ethics code would be if a non-Clean Elections candidate unknowingly accepted a prohibited contribution and either couldn’t or wouldn’t return it.

The ethics code also states that if commissioners, except for those who run with public funding under the state’s Clean Elections, unknowingly accept a prohibited contribution, they must return it. And if they are unable or unwilling to return it, the commissioners must recuse themselves from matters involving that entity, except for Clean Elections candidates. Clean Elections candidates qualify for public funding by collecting a designated number of $5 qualifying contributions from voters, and they’re permitted to raise limited amounts of “seed money” outside of the lump sum they received from the state.

For Clean Elections candidates in such situations, the ethics code requires that they make a public declaration about the contribution, and give others the opportunity to say why they believe the commissioner should recuse him or herself.

The commission said at the time that the ethics code was passed that it intended to exempt Clean Elections candidates from the requirement. Four of the five current members of the commission were elected with Clean Elections funding.

Some of Legislative Council’s arguments regarding the ethics code focus on process and procedure. They note that official comments guiding commissioners on how to comply include instructions that aren’t actually part of the written rules. The prohibition on any employees of regulated entities contribution to commissioners, for example, is in a comment, not the text of a rule itself.

Those comments also include rules requiring commissioners to disclose contributions and publicly available information about independent expenditure funding on the commission’s website. Those requirements are also part of Arizona’s campaign finance laws, and must be disclosed to the secretary of state’s office as well.

Arizona Mirror is part of States Newsroom, a network of news outlets supported by grants and a coalition of donors as a 501c(3) public charity. Arizona Mirror maintains editorial independence. Contact Editor Jim Small for questions: info@azmirror.com. Follow Arizona Mirror on Facebook and Twitter.

Arizona lawmaker takes aim at policy barring campaign contributions by utilities is an article from Energy News Network, a nonprofit news service covering the clean energy transition. If you would like to support us please make a donation.

This story was originally published at High Country News (hcn.org) on June 9.

One autumn evening four years ago, Ivan Bender, a Hualapai man in his mid-50s, took a walk with his fluffy brown-and-white Pomeranian, Sierra May, to check on the ranchland he tends. Nestled in western Arizona’s Big Sandy River Valley, the ranch protects Ha’ Kamwe’ — hot springs that are sacred to the Hualapai and known today in English as Cofer Hot Springs. As the shadows lengthened, Bender saw something surprising — men working on a nearby hillside.

“I asked them what they were doing,” Bender recalled. “They told me they were drilling.” As it turns out, along with sacred places including the hot springs, ceremony sites and ancestral burials, the valley also holds an enormous lithium deposit. Now, exploratory work by Australian company Hawkstone Mining threatens those places, and with them, the religious practices of the Hualapai and other Indigenous nations. But this threat is nothing new: Centuries of land expropriation, combined with federal court rulings denying protection to sacred sites, have long devastated Indigenous religious freedom.

Cholla Canyon Ranch, where Bender is the caretaker, includes approximately 360 acres about halfway between Phoenix and Las Vegas, flanked to the west by the lush riparian corridor of Big Sandy River. The valley is part of an ancient salt route connecting tribes from as far north as central Utah to communities in Baja California and along the Pacific Coast, documented in the songs and oral traditions of many Indigenous nations.

“There are stories about that land and what it represents to the Hualapai Tribe,” Bender said. “To me, it holds a really, really sacred valley of life in general.”

According to tribal councilmember Richard Powskey, who directs the Hualapai Natural Resources Department, the Hualapai harvest native plant materials along the river corridor for everything from cradle boards to drums.

The mining company (USA Lithium Ltd., which has since been acquired by Hawkstone Mining Ltd.) hadn’t told the Hualapai Tribe it was searching for lithium on nearby Bureau of Land Management lands. That evening, Bender was shocked to see the destruction taking place. The company eventually bulldozed a network of roads, drilling nearly 50 test wells more than 300 feet deep in the sacred landscape.

This summer, Hawkstone plans to triple its exploratory drilling, almost encircling Canyon Ranch and the springs it protects. In the next few years, Hawkstone hopes to break ground on an open-pit mine and dig an underground slurry to pipe the ore about 50 miles to a plant in Kingman, Arizona, where it will use sulfuric acid to extract the lithium. Lithium, which is listed as a critical mineral, is crucial for reaching the Biden administration’s goal of replacing gas-guzzling vehicles with electric vehicles, and Big Sandy Valley is relatively close to the Tesla factory in Nevada. Altogether, Hawkstone has mining rights on more than 5,000 acres of public land in Arizona for this project. Yet tribes whose sacred sites are at risk have almost no say in its decisions.

Public lands from Bears Ears to Oak Flat contain countless areas of cultural and religious importance. But when tribes have gone to court to protect these sites — and their own religious freedom — they’ve consistently lost. Courts have narrowly interpreted what counts as a religious burden for tribes, largely to preserve the federal government’s ability to use public lands as it sees fit.

The roots of this policy are centuries deep. In the landmark 1823 case Johnson v. M’Intosh, the Supreme Court ruled that Indigenous people could not sell land to private owners in the United States, because they did not own it. Instead, Christian colonizers were the rightful owners, based on the Spanish colonial “Doctrine of Discovery,” a racist and anti-Indigenous policy holding that non-Christian, non-European societies were inferior, and that Christian European nations had a superior right to all land.

“Part of what justified the claiming of the land was that (colonizers) would teach the Indigenous people Christianity,” Michalyn Steele, an Indian law expert at Brigham Young University and member of the Seneca Nation of Indians, said. “If they rejected Christianity, then they essentially forfeited their rights to the land and resources.”

By the late 1800s, the United States had banned Indigenous religious practices, forcing tribes to socially and politically assimilate, and to adopt Christianity through agricultural, lifestyle and religious practices.

More recently, courts have continued to weaken protections for Indigenous religious freedom on public lands. In the precedent-setting 1988 case Lyng v. Northwest Indian Cemetery Protective Association, the Supreme Court ruled that the Forest Service could widen a logging road in Northern California’s Six Rivers National Forest, even though it would destroy a region that was essential to the religious beliefs of tribes including the Yurok, Carok and Tolowa. The Supreme Court reasoned that although the location might be utterly wrecked, that destruction did not violate the Constitution, because it would not force tribal members to violate their religious beliefs or punish them for practicing their religions.

“Even assuming that the Government’s actions here will virtually destroy the Indians’ ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding respondents’ legal claims,” Justice Sandra Day O’Connor wrote in the majority opinion.

The court ruled, in part, to avoid granting tribes broad control over their ancestral lands through the exercise of their religious freedom. “Whatever rights the Indians may have to the use of the area … those rights do not divest the Government of its rights to use what is, after all, its land,” the ruling said.

Though Congress partially protected that sacred region by adding it to the Siskiyou Wilderness Area, the Lyng ruling still reverberates across Indian Country today, creating what Stephanie Barclay, the director of the University of Notre Dame’s Religious Liberty Institute and a former litigator at the Becket Fund for Religious Liberty, calls a “double standard” in how Indigenous sacred sites are treated.

Barclay compared the situation of tribes such as the Hualapai, which rely on the federal government to access sacred sites, to that of Jewish prisoners who adhere to a kosher diet, or Sikh members of the military whose faith forbids them to cut their hair. In all of these cases, religious freedoms are controlled by the government. But, Barclay said, tribal members don’t get the same religious protections.

“If the government is unwilling to accommodate an access for different Native peoples so that they can practice their religion in those sacred sites, then it won’t happen,” she said. But the Supreme Court has narrowly interpreted religious protection of Indigenous sacred sites on public lands, to the point of allowing wholesale destruction.

In a recent Harvard Law Review article, Steele and Barclay urge the federal government to protect Indigenous religious practices as one of its trust responsibilities, and to be very cautious about allowing destruction of sacred sites on public lands.

As things stand, state and federal agencies may permit irreversible damage with little input from affected Indigenous communities. Indeed, communication between the BLM and Hualapai Tribe about Hawkstone’s Big Sandy River Valley lithium impacts has been almost nonexistent. Although the BLM invited the Hualapai Tribe to consult with the agency in June 2020 about Hawkstone’s exploration plans, the agency later rebuffed the tribe’s request to be a coordinating agency on the project. It also rejected the suggestion that a tribal elder walk through the area and educate the agency about the cultural resources and history that mining might imperil.

The BLM said that it found only four cultural resource sites in the proposed drilling area. Of those, it said it would attempt to avoid one, which was eligible for protection under the National Historic Preservation Act. Meanwhile, in its publicly available environmental assessment, the agency stated that effects to Native American religious concerns or traditional values were “to be determined,” and that it was consulting with the Hualapai Tribe, among others. As of this writing, BLM staff had neither agreed to an interview nor responded to written questions from High Country News.

For its part, in March Hawkstone said that “All (I)ndigenous title is cleared and there are no other known historical or environmentally sensitive areas.” Hawkstone’s report ignores the fact that even when tribes lack legal title to their traditional lands, those spaces still hold religious and cultural importance.

When asked for comment, Doug Pitts, a U.S. advisor at Hawkstone Mining, emailed HCN that, given the early stage of the project, “we do not feel a discussion on the project is worthwhile at this time.”

Even without a clear legal path forward, the Hualapai Tribe has not given up on protecting its religious practices from lithium exploration. Nor is it alone: In April, the Inter Tribal Association of Arizona, representing 21 nations including the Hualapai, passed a resolution objecting to the lithium mining, calling the BLM’s environmental analysis “grossly insufficient.” Recently, the BLM agreed to extend the comment period until June 10. But Councilmember Powskey pointed out that during the Standing Rock protests against the Dakota Access Pipeline — which in part concerned the destruction of burials — the authorities’ response was violent, and tribal nations, for a long while, were the only ones who seemed to care. And in the end, the pipeline was built.

Big Sandy is not the first battle the Hualapai have fought to protect sacred landscapes in this remote corner of Arizona, where wind turbines, gold mines and other private interests already have destroyed culturally important places — and it won’t be the last. “You know, there’s more to come,” Powskey said.

Meanwhile, the likelihood of more lithium exploration around the ranch upsets caretaker Ivan Bender. The double standard in how Indigenous sacred sites are treated galls him.

“They come in here and desecrate your sacred land,” he said. “Would they appreciate me if I go to Arlington Cemetery and build me a sweat lodge and have me a sweat on that land?” he asked, comparing the valley to another site considered sacred. “I’d rather they go somewhere else and leave history alone.”

Mining for lithium, at a cost to Indigenous religions is an article from Energy News Network, a nonprofit news service covering the clean energy transition. If you would like to support us please make a donation.