On September 23, 2019, the U.S. Court of Appeals for the Ninth Circuit affirmed the Bureau of Indian Affairs' ("BIA") approval of an industrial-scale wind facility in Southern California, concluding that the BIA's review of the project complied with the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act ("APA"). Protect Our Communities Found. v. LaCounte, 939 F.3d 1029 (9th Cir. 2019).
The wind facility at issue was broken into two phases to address the fact that some turbines will be located on federal land, while other turbines will be located on tribal land. Phase I of the project, involving 65 turbines on federal land, was approved by the Bureau of Land Management ("BLM"). Phase II of the project, involving 20 turbines on tribal land, was approved by the BIA. Both approvals were based on an environmental impact statement ("EIS")—required under NEPA and prepared by BLM—that covered both phases. Two individuals and an environmental group challenged BIA's approval of Phase II based on the EIS, which identified an "unavoidable adverse impact" to golden eagles from collision with the turbines and loss of breeding territory that were particularly acute for Phase II.
Plaintiffs first argued that the EIS was deficient with respect to Phase II because it did not consider an alternative where only some of the Phase II turbines would be authorized. The court found, however, that the EIS was sufficient because it rightly looked at Phase I and Phase II as a combined project that was merely divided into phases because of a jurisdictional line and included an alternative where fewer than all turbines would be constructed, even though the reduced number of turbines would be in Phase I.
Plaintiffs next argued that BIA should have prepared a supplemental EIS ("SEIS") to analyze information that arose after the EIS was published. But the court found that: (i) none of the information available after the EIS was published was sufficiently both new and significant (under relevant case law or the NEPA regulations) to warrant a SEIS; (ii) the EIS did not "reject" the Phase II turbines as Plaintiffs claimed; and (iii) BIA's review of environmental impacts met the APA's "hard look" requirement.
Plaintiffs' final arguments centered on the claim that BIA improperly failed to require the wind facility operator to obtain a Bald and Golden Eagle Protection Act ("BGEPA") permit from the U.S. Fish and Wildlife Service. To the contrary, the court found that BIA's Record of Decision required the operator to both apply for and comply with any requirements under a BGEPA permit.
The Ninth Circuit's decision in this case paves the way for this renewable energy project to move forward. It also underscores, however, that renewable energy projects face challenges on environmental grounds under NEPA, even if such challenges differ from the challenges that fossil fuel projects face based on greenhouse gas emissions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
