Date: August 10, 2023
To: Honorable Jennifer Granholm Secretary
U.S. Department of Energy
1000 Independence Ave., SW
Washington, DC 20585
The.Secretary@hq.doe.gov
Kelly Cummins, Acting Director
Office of Clean Energy Demonstrations
U.S. Department of Energy
1000 Independence Ave SW Washington, D.C. 20585
OCED@hq.doe.gov
Re: Concerns regarding Western Interstate Hydrogen Hub (WISHH) Community Engagement
Dear Secretary Granholm,
The Western Environmental Law Center (WELC), along with 350 New Mexico, Center For Biological Diversity, Chaco Alliance, Citizens Caring For The Future, Conservation Voters New Mexico, Counselor Health Impact Assessment - K’é Bee Hózhǫǫgo Iiná Silá Committee, Diné C.A.R.E., Moms Clean Air Force, Naeva, New Mexico Environmental Law Center, Interfaith Power & Light, New Mexico And El Paso Region, San Juan Citizens Alliance, Tó Nizhóní Ání, and Youth United For Climate Crisis Action, are writing to highlight concerns and request a meeting with the Department of Energy Demonstrations to discuss community involvement and consultation regarding the Western Inter-States Hydrogen Hub (WISHH) proposal to the Regional Clean Hydrogen Hubs Program.1 The signatories to this letter represent frontline and historically marginalized community organizations, economic and social justice organizations, and environmental organizations across New Mexico. We endorse the Department of Energy’s stated commitment to meaningful community involvement in the development of the Regional Clean Hydrogen Hubs Program, as indicated by the Community Benefits Plan requirement and DOE media materials releases promising that “the selection of the regional H2Hubs will...consider factors such as environmental justice, community engagement, [and] consent-based siting...”2 We hope to assist in furthering the Department’s goal by drawing attention to the lack of community engagement and support regarding the WISHH proposal. This does not mean we endorse or will endorse the WISHH proposal. It does mean that we strongly encourage the Department to take into account other letters sent by community organizations detailing opposition to the WISHH proposal on the merits. For a detailed discussion of the signatories’ opposition to fossil gas hydrogen, please see Exhibits 2, 3, 9, 10, 11, 14, 15, and 16 in the attached Appendix.
We will be candid: Despite the Department’s promise to engage communities in the Hydrogen Hubs program, New Mexico’s frontline and environmental justice communities have been left out of the conversation. We wish to alert the Department to the fact that the Western Inter-States Hydrogen Hub, or WISHH, applicants and proponents have not, to our knowledge, engaged with the organizations listed here, despite many attempts by these organizations and others at outreach,3 efforts to learn more about the proposed projects, and a high-profile campaign against fossil gas hydrogen development in the state of New Mexico during the last two state legislative sessions.4
Community Engagement
The Department claimed in a September 2022 press release that “addressing environmental justice and engaging local communities, particularly historically disadvantaged and underserved communities that have disproportionately borne the brunt of past energy practices, are fundamental priorities of DOE’s approach to developing H2Hubs.”5 As noted most recently in Inside Climate News,6 as well as in a May 2023 letter from NRDC and 33 other organizations,7 the actual rollout of the H2Hubs program has left environmental justice communities entirely in the dark. Project proponents have refused to share even the bare minimum information about the projects that would be required for meaningful community engagement.
Despite Freedom of Information Act (“FOIA”) Requests to the Department of Energy by Earthjustice and the Western Environmental Law Center,8 as well as direct requests from community organizations to WISHH, proponents9 no information has been released regarding the potential hydrogen projects’ fuel sources and end uses, anticipated greenhouse gas emissions and anticipated local air pollution impacts, end uses of the proposed projects, locations and communities where hydrogen production, transport, storage, end-use, and associated infrastructure will be sited, or the Community Benefits Plan that WISHH has presumably submitted as part of the April 7th, 2023 Full Application, which was allegedly developed with community input.
Communities simply cannot meaningfully engage with the hydrogen hub proposal when the location, environmental impacts, including water use, and community benefits of the project are withheld. Without knowing more information, community organizations cannot weigh in on proposed project siting, engage in the analysis of cumulative environmental impacts (including climate, health, environmental justice, cultural and socioeconomic impacts), or participate in the development of Community Benefits Plans. The project specifics, including location, may also determine whether project proponent agencies like the New Mexico Economic Development Department are required to make a reasonable effort to collaborate with sovereign tribal nations under the State-Tribal Collaboration Act; without project information, we cannot know whether this collaboration is required or has occurred.
Indigenous communities are not able to share information and concerns with each other about siting of facilities and pipelines on or near sacred or environmentally fragile locations, or near schools, residences, or other areas where peoples’ health and safety might be put at risk from Hub project activities. WISHH project proponents have not acknowledged the extremely limited water supply in the region, specifically, on Navajo Nation, and how they could engage in such a water-intensive process without putting excessive strain on the region’s resources. Frontline
communities, who already bear the brunt of hazardous air pollutants, water contamination, and dangerous fossil fuel infrastructure in their communities,10 are unable to assess the cumulative impacts and environmental justice implications of adding hydrogen hub projects to the already overburdened environment. Moreover, municipalities, unions, and other economic development groups are unable to negotiate for specific community benefits, such as local hire agreements, without any information about the proposed projects.
Outreach from WISHH applicants and proponents to community groups only after a decision by Department of Energy to fund the proposal would be unacceptable. That approach would lock in projects as conceived by developers with little room for community groups to ask for modifications.
It is also our understanding that, if selected as a Hydrogen Hub, WISHH will be subject to NEPA review by DOE, and that Community Benefit Agreements and meaningful public involvement are to inform that NEPA review.11 Effective up-front engagement—prior to the initiation of the NEPA process—is essential to set the stage for an effective environmental review in the public interest that builds trust with communities and sets the stage for effective project permitting and implementation.12 Problematically, the current approach risks souring government, project proponent, and community relations before the NEPA process starts. It is difficult to fathom how the Department could possibly take NEPA’s requisite hard look at potentially significant impacts of WISHH, consider reasonable alternatives, or fulfill NEPA’s twin aims of informed decision-making and transparency,13 when, to our knowledge, project proponents have failed even to share the most basic information with those in frontline and “environmental justice” communities––let alone involve them meaningfully in planning and decision-making (including, potentially, the decision not to consent to WISHH projects in their communities) or incorporate their firsthand knowledge and expertise regarding impacts.
Despite community support that WISHH proponents may have alleged in their application, any rose-tinged contentions are simply untrue. Many of New Mexico’s frontline and Indigenous community organizations have recently engaged in high-profile campaigns opposing fossil gas hydrogen in both New Mexico and Navajo Nation, have proven vocal in raising their concerns, and have submitted evidence of their opposition to WISHH.
For example, four Navajo Nation Chapters, including Teec Nos Pos, Rock Springs, Sheepsprings, and Gadii’ah-To’koi, as well as the Navajo Eastern Agency Council, have passed resolutions formally acknowledging that hydrogen is not in their best interest, due in part to the desire to protect Navajo water from excessive industrial use.14 This is significant for several reasons, one of which being that the Navajo Chapter Resolution system represents a cross- section of local community opinion, and the Navajo chapters in the Eastern Agency who passed the resolution opposing hydrogen represent some of the communities most impacted by fossil fuel development in the entire region.15
Tó Nizhóní Ání, a Diné grassroots organization, sent the anti-fossil fuel development resolutions to Maria DiBiase Eisemann, Policy Advisor with the Colorado Energy Office, and facilitator of the “WISHH Community Roundtable” event, on October 18, 2022 via email and received a response on October 24, 2022, thanking her for her participation.16 Yet, WISHH representatives did not engage Tó Nizhóní Ání further, and we have no way of knowing whether WISHH incorporated the Navajo Chapter Resolutions into its community support analysis, because WISHH will not release information regarding its submitted Community Plan.
WISHH proponents in New Mexico, including the Office of the Governor, Economic Development Department, Environment Department, and the Energy Minerals and Natural Resources Department, are also in receipt of letters, resolutions, and comments from frontline and environmental organizations opposing hydrogen development, including, but not limited to: an October 5th, 2021 letter from 30 organizations, including the Western Environmental Law Center, addressed to the New Mexico Office of the Governor, opposing a fossil gas hydrogen hub;17 March 22nd, 2022 letter from Tó Nizhóní Ání and Diné C.A.R.E. addressed to the Governors Offices of New Mexico, Colorado, Utah, and Wyoming, opposing fossil gas hydrogen development and requesting further consultation with WISHH;18 June 13th 2023 letter from the Center for Biological Diversity and the New Mexico No False Solutions Coalition addressed to the Department of Energy urging them to reject the WISHH proposal, signed by frontline and Indigenous organizations.19 Additionally, on March 21st, 2022, the Western Environmental Law Center, along with 25 other frontline and community organizations, environmental organizations, equity and racial justice organizations, and individuals, responded to the U.S. Department of Energy’s (DOE) February 15th, 2022 Request For Information (RFI) about the Hydrogen Hub program.20 In the RFI response, the signatories specifically endorsed and requested meaningful community involvement, consultation, and consent with regards to all elements of any potential hydrogen hub development.21
As the WISHH proponents themselves stated in the redacted Concept Paper, “We understand and will respect that some communities may request exclusion from hosting H2 infrastructure.”22 We cannot know if WISHH intends to uphold this commitment, or if they claimed to have community support in their Full Application, because they have refused to share that information. We do know that WISHH proponents are constructively aware of the widespread opposition to fossil gas hydrogen development in frontline and environmental communities throughout the state of New Mexico. If those in the affected communities do not consent to the placement or promotion of a hydrogen project, we urge the DOE to deny funding to that project. Community engagement and support—like all aspects of environmental justice—is not merely “a box to be checked.”23
We endorse meaningful community involvement, consultation, and consent with regards to all elements of any potential hydrogen hub development. We urge DOE to analyze the WISHH proposal and lack of community engagement through the lenses of environmental justice—including procedural justice, “meaningful involvement,” and consent from those in frontline communities—and Free, Prior, and Informed Consent (FPIC).24 Free, Prior, and Informed Consent requires that a governing body seek not only consultation and meaningful participation from Indigenous peoples on matters that may affect them, but also seek consent. Free, Prior, and Informed Consent means that consent is free, given voluntarily and without coercion, intimidation and manipulation, sought sufficiently in advance of any authorization or commencement of activities, and a collective decision is made by the right holders and reached through a customary decision-making process.
Importantly, these frameworks mean that DOE should ensure that those in frontline communities facing possible hydrogen hub development are afforded significant consultation, meaningful involvement and decision-making power in any potential project development or operation. We believe that this was DOE’s intention in developing the application guidelines for the H2Hub program, and accordingly, we urge the Department of Energy to consider the community opposition noted here and in other documents when considering whether or not to advance the WISHH proposal.
Finally, the continued extraction of fossil gas—including for hydrogen projects—in New Mexico will only further delay the just transition away from fossil fuels that is desperately needed in the region. A just transition away from fossil fuels and other extracting, polluting industries is imperative––particularly for communities experiencing historic and ongoing colonialism, racism, fossil fuel extraction and other polluting industries, and other inequities and injustices. What this just transition entails for a particular community is best defined by those who live there, and DOE should take direction from them in evaluating whether and to what extent a particular hub proposal advances or hinders a just transition. In New Mexico, frontline and environmental justice organizations and communities have repeatedly made clear that they do not want the just transition to be hijacked by fossil gas hydrogen development in their communities.
We strongly urge the Department of Energy to meet with community and environmental justice organizations in New Mexico to evaluate the WISHH proposal. The Department cannot honor its professed commitment to community engagement or its obligations under multiple Executive Orders relating to environmental justice and meaningful public involvement25 by uncritically accepting project proponents’ claims regarding consultation, consent, and meaningful involvement—particularly when, as here, those claims contradict the lived experiences and powerful collective voices of those in frontline and environmental justice communities.
Thank you,
Ally Beasley, Morgan O’Grady, and Rose Rushing
Attorneys
Western Environmental Law Center
Tom Solomon and Jim Mackenzie
Co-coordinators
350 New Mexico
Gail Evans
Senior Attorney
Center for Biological Diversity
Anson Wright
Coordinator
Chaco Alliance
Kayley Shoup
Community Organizer
Citizens Caring for the Future
Demis Foster
Executive Director
Conservation Voters New Mexico
Teresa Seamster, MS, EdS
Counselor Health Impact Assessment
K’é Bee Hózhǫǫgo Iiná Silá Committee
Robyn Jackson
Executive Director
Diné C.A.R.E.
Joan Brown
Executive Director
Interfaith Power & Light, New Mexico & El Paso Region
Celerah Hewes
National Field Manager
Moms Clean Air Force
Ahtza Chavez
Executive Director
Naeva
Dr. Virginia Necochea
Executive Director
New Mexico Environmental Law Center
Emilie Frojen
Energy and Climate Program Associate
San Juan Citizens Alliance
Jessica Keetso
Community Organizer
Tó Nizhóní Ání (Sacred Water Speaks)
Ennedith López
Policy Campaign Manager
Youth United for Climate Crisis Action
CC: Shalanda Baker
Director of the Office of Economic Impact and Diversity
U.S. Department of Energy
1000 Independence Ave., SW
Washington, DC 20585
shalanda.baker@hq.doe.gov
Learn about Moms’ work on clean energy.
1 A list of all exhibits to this comment is attached as Appendix.
2 “DOE Launches Bipartisan Infrastructure Law’s $8 Billion Program for Clean Hydrogen Hubs across U.S.” United States Department of Energy, 6 June 2022, www.energy.gov/articles/doe-launches-bipartisan-infrastructure-laws-8- billion-program-clean-hydrogen-hubs-across. Accessed 31 July 2023.
3 See Appendix, Exhibits 1, 4-8, for direct attempts at outreach, and Exhibits 9-11, 14-18 for letters to WISHH proponents.
4 During the 2022 New Mexico legislative session, four separate hydrogen bills were defeated after significant opposition by a coalition of frontline and environmental organizations. For more coverage of the 2022 New Mexico legislative session and the general opposition to hydrogen development amongst the New Mexico environmental and frontline communities, see: Kevin Robinson-Avila, “New Mexico’s aggressive pursuit of hydrogen reignites debate.” Albuquerque Journal, June 18th, 2022, https://www.abqjournal.com/news/local/new-mexicos-aggressive- pursuit-of-hydrogen-reignites-debate/article_2f067c46-8ead-5bb0-8ea3-2784628fb556.html, accessed 31 July 2023; Robert Nott, “Lawmakers Stifle N.M. Governor’s Clean Hydrogen Economy Plan.” The Santa Fe New Mexican via Governing,com, 28 January 2022, https://www.governing.com/now/lawmakers-stifle-n-m-governors-clean- hydrogen-economy-plan, accessed 31 July 2023, which describes the failed 2022 Hydrogen Hub Development Act hearing: “Before the discussion began, [McQueen] noted 299 people were watching the virtual meeting. He took a virtual poll, he said, which found 73 percent of viewers were against the bill and just 27 percent were in favor of it. "That's a pretty robust response," he said.”
5 “Biden-Harris Administration Announces Historic $7 Billion Funding Opportunity to Jump-Start America’s Clean Hydrogen Economy.” United States Department of Energy, 22 Sept. 2022, https://www.energy.gov/articles/biden- harris-administration-announces-historic-7-billion-funding-opportunity-jump-start. Accessed 31 July 2023.
6 Nicholas Kusnetz, “Federal Hydrogen Program is Cutting Out Local Groups, Threatening Climate Goals, Advocates Say.” Inside Climate News, 2 June 2023. https://insideclimatenews.org/news/02062023/federal- hydrogen-program-is-cutting-out-local-groups-threatening-climate-goals-advocates-say/. Accessed 31 July 2023.
7 National Resources Defense Council et al., “Re: Need for transparency in the implementation of the Infrastructure and Jobs Act (IIJA) hydrogen hubs program,” 4 May 2023, https://www.nrdc.org/sites/default/files/2023-06/iija- hydrogen-hubs-transparency-letter-20230504.pdf. Accessed 31 July 2023.
8 These FOIA requests were assigned the administrative numbers DOE FOIA HQ-2023-00877-F and DOE FOIA HQ-2023-00878-F, attached as Exhibits 18 and 19. The Department of Energy has failed to respond to either of these requests within the statutory deadline.
9 See, e.g., Exhibits 1, 4-8.
10 See, e.g., Physicians for Social Responsibility and Concerned Health Professionals of NY, Compendium of Scientific, Medical, and Media Findings Demonstrating Risks and Harms of Fracking, 8th Edition (2022). Available at https://psr.org/wp-content/uploads/2022/04/compendium-8.pdf; See also Rachel Morello-Frosch et al., Understanding the Cumulative Impacts of Inequalities in Environmental Health: Implications for Policy, 30 HEALTH AFFAIRS 879 (May 2011); Jill Johnston & Lara Cushing, Chemical Exposures, Health, and Environmental Justice in Communities Living on the Fenceline of Industry, 7 Current Environmental Health Reports, 48-57 (2020).
11 See, e.g., Full Funding Opportunity Announcement - Mod 000002 (Last Updated: 1/26/2023 04:06 PM ET) at 38, accessible for download at https://oced-exchange.energy.gov/Default.aspx#FoaId4dbbd966-7524-4830-b883- 450933661811; See also infra Note 13.
12 https://dusp.mit.edu/projects/overcoming-opposition-renewable-energy-facilities-america
13 To protect public health and promote informed agency decision-making, transparency, and public participation,
NEPA imposes “action-forcing procedures … requir[ing] that agencies take a hard look at environmental consequences.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Such consequences include all “reasonably foreseeable” direct, indirect, and cumulative effects, including health effects. See, e.g., Middle Rio Grande Conserv. Dist. v. Norton, 294 F.3d 1220, 1229 (10th Cir. 2002). An effect is “reasonably foreseeable” if it is “sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching a
decision.” Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir.1992). An agency’s hard look “must be taken objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made.” Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 712 (10th Cir. 2010); See also Sec. Or. No. 3399, Department-Wide Approach to the Climate Crisis and Restoring Transparency and Integrity to the Decision-Making Process (April 16,
2021), https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3399-508_0.pdf.
14 See, e.g., Exhibits 12-13, 17.
15 Jodi Peterson, The BLM leases lands near Chaco Canyon for $3 million, High Country News (Jan. 27, 2017), at https://www.hcn.org/articles/land-near-chaco-canyon-leased-for-oil-and-gas-development.
16 Exhibit 1.
17 Exhibit 10.
18 Exhibit 16.
19 Exhibit 3.
20 Exhibit 9.
21 Id.
22 Western Interstate Hydrogen Hub Redacted Concept Paper, Page 11. https://www.env.nm.gov/wp- content/uploads/2022/11/Control-Number-2779-1540_WIH2_Concept-Paper-redact-V5.pdf. Accessed 31 July 2023.
23 Friends of Buckingham v. State Air Pollution Control Board, 947 F.3d 68, 92 (4th Cir. 2020).
24 United Nations, “United Nations Declaration on the Rights of Indigenous Peoples,” https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-ofindigenous-
peoples.html. [Hereinafter UNDRIP]. Free, Prior and Informed Consent is, a concept outlined in the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP), Articles 10, 11, 19, 28, 29, and 32 (Articles 19, 32 also note duty to consult).; Pueblo Action Alliance, “What Is Free, Prior and Informed Consent?” https://www.puebloactionalliance.org/free-prior-informed-consent. Accessed 31 July 2023.
25 See, e.g., Executive Order 12898, 59 Fed. Reg. 7629 (Feb. 11, 1994) Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, available at https://www.archives.gov/files/federal- register/executive-orders/pdf/12898.pdf; Executive Order 14008, 86 Fed. Reg. 7619-7633, Tackling the climate crisis at home and abroad (January 27, 2021), available at https://www.whitehouse.gov/briefing-room/presidential- actions/2021/01/27/executive-order-on-tackling-the-climate-crisis-at-home-and-abroad/. Section 201 (Policy), for example, recognizes the threat to public health posed by the climate crisis and the need to “deliver environmental justice in communities all across America.” Another part of the EO is expressly dedicated to “Securing Environmental Justice and Spurring Economic Opportunity,” and Section 219 expands on the language of EO 12898, directing agencies to make environmental justice part of their mission, to expressly include climate,
cumulative impacts, and “accompanying economic challenges.” Section 221 creates the “White House
Environmental Justice Advisory Council” (WHEJAC), which has since submitted draft recommendations to CEQ on an environmental justice screening tool and on updates to EO 12898; Executive Order 13990, 86 Fed. Reg. 7037- 7043 Protecting Public Health and the Environment and Restoring Science to Tackle Climate Change (Jan. 25, 2021).