Appeals court rejects appeal related to Ivanpah solar project

A three-judge panel at the U.S. Ninth Circuit Court of Appeals on May 19 rejected a claim that a government approval for a solar project denied certain inviduals the right to enter religious areas occupied by the project.

The La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee, CAlifornians for Renewable Energy, Alfredo Acosta Figueroa, Patricia Figueroa, Phillip Smith, Ronald Van Fleet, Catherine Ohrin-Greipp, Rudy Martinez Macias (now deceased) and Gilbert Leivas brought this suit against the U.S. Department of the Interior, as well as Solar Partners I LLC, Solar Partners II LLC, Solar Partners VIII LLC and BrightSource Energy Inc.

The appeal decided May 19 arose from a denial of plaintiffs’ motion for summary judgment and grant of defendants’ motion for summary judgment. While the initial suit included numerous claims, the only claim on appeal is under the Religious Freedom Restoration Act (RFRA). To establish a prima facie RFRA claim, a plaintiff must allege two elements: First, the activities the plaintiff claims are burdened by the government action must be an “exercise of religion’; and second, the government action must “substantially burden” the plaintiff’s exercise of religion.

Noted the May 19 court decision: “This appeal hinges on the second element, and specifically whether denial of Plaintiffs’ access to the Ivanpah Solar Electric Generating System (‘Ivanpah Project’) site imposes a substantial burden on the exercise of religion within the meaning of RFRA. If a prima facie claim has been established, the ‘Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person[] is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’ The district court did not rule on the compelling interest part of the test, and we decline to do so as well. This appeal hinges on whether Plaintiffs have met the substantial burden requirement.

“We conclude that the record, which includes declarations submitted by the Plaintiffs that provide little more than conclusory statements and which have not shown where the alleged sacred sites are located at the Ivanpah Project site, is insufficient to support Plaintiffs’ claim that the loss of access to the limited area taken by the Ivanpah Project imposes a substantial burden. Viewing the evidence in the light most favorable to the Plaintiffs, the Plaintiffs have not shown that they are either ‘forced to choose between following the tenets of their religion and receiving a governmental benefit,’ or ‘coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions’ as this court requires to establish a substantial burden under RFRA.”

This is not the only legal victory lately for the 370-MW project. A three-judge panel at the U.S. Ninth Circuit Court of Appeals on May 5 upheld a lower court decision that found that the federal government did an adequate environmental review of the Ivanpah Solar Electric Generating System project, which is located in California.

Western Watersheds Project had appealed the District Court’s summary judgment in favor of the U.S. Bureau of Land Management and project developer BrightSource Energy. The appeals court wrote: “BLM took the requisite ‘hard look’ at the impacts of the Ivanpah Solar Electric Generating System (‘Solar Project’) on the desert tortoise. That BLM estimated tortoise populations based on surveys of only adult tortoises did not render its analysis arbitrary. Juvenile tortoises and their eggs were difficult to detect in population surveys, and the vast majority would die from causes unrelated to the Solar Project before reaching reproductive age. BLM’s consideration of impacts to the desert tortoise species, rather than individuals, was appropriate.”

The Western Watersheds Project in January 2013 took the matter to the appeals court. It said the final EIS done by the bureau on this project violates National Environmental Policy Act because it ignores the fact that the project will kill hundreds of protected juvenile tortoises. In fact, including juveniles, up to 1,136 tortoises inhabit the project site and would be killed, injured or displaced by the project, the appeal said.

Said the BrightSource website about this facility: “BrightSource’s solar thermal system is operating at the Ivanpah Solar Electric Generating System (ISEGS) in California’s Mojave Desert. Ivanpah, which began commercial operation in 2013, is delivering power to [Pacific Gas and Electric] and Southern California Edison. The project is currently the largest solar thermal power plant in the world. Ivanpah was constructed by Bechtel and is operated by NRG Energy, one of the project’s equity investors.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.