A three-judge panel at the U.S. Ninth Circuit Court of Appeals on May 27 affirmed a district court’s judgment upholding the decision of the U.S. Bureau of Land Management to grant a right-of-way over federal land for a wind energy project developed on private land by intervenor North Sky River Energy LLC.
The wind project was developed near Tehachapi, California, and the road project was initiated when North Sky applied to the BLM for a right-of-way to connect the wind farm to an existing state highway. Because the wind project could be built without the federal road project, and because the federal road project had independent utility, the BLM concluded that the wind project was not subject to formal consultation under the Endangered Species Act, and need not be analyzed as a connected action under the National Environmental Policy Act.
The three-judge panel held that the wind project did not trigger BLM’s duty to initiate consultation with the U.S. Fish and Wildlife Service under the Endangered Species Act. The panel also held that the wind project did not trigger BLM’s duty to prepare an Environmental Impact Statement under the National Environmental Policy Act because the wind project was not a federal action or directly connected to the road project.
The plaintiffs in this case are the Sierra Club, Center for Biological Diversity and Defenders of Wildlife.
The wind energy project was developed by North Sky on more than 12,000 acres of private land located in the Sierra Nevada mountain range, northeast of Tehachapi. The right-of-way for the road project contains underground power and fiber optic communication lines from the wind project to California’s energy grid.
North Sky’s original request to the BLM included wind turbines on BLM land. Several months later, North Sky withdrew the original request and changed the proposal to eliminate the turbines on federal land. Instead, North Sky sought permission to use and improve some existing BLM roads, to “construct a transmission generation tie (gen-tie) line, and construct new roads to access private property owned by” North Sky. North Sky rejected a private road option in favor of the access road project “to utilize as much existing road as possible, and thereby minimize environmental impacts.” BLM then issued an environmental assessment in which it found that the road project would have no significant environmental impact.