Appeals court tosses complaint over BLM approval of Ocotillo wind project

A three-judge panel at the U.S. Ninth Circuit Court of Appeals on Nov. 19 rejected an appeal from environmental groups of the U.S. Bureau of Land Management’s (BLM) approval of the agency’s environmental review of a Pattern Energy Group Inc. wind project in California.

The plaintiffs, led by the Desert Protective Council, had appealed the district court’s judgment denying plaintiffs’ motion for summary judgment and granting defendants’ motion for summary judgment. The appeals court panel affirmed that lower court decision in a case related to National Environmental Policy Act (NEPA) review of the Ocotillo Wind Energy Facility project.

“The district court did not err in determining that the BLM complied with NEPA, because the BLM sufficiently evaluated and disclosed the environmental impacts of the Ocotillo wind energy facility project (the ‘Project’),” said the appeals court ruling. “Plaintiffs contend that they were not provided with an opportunity for public comment on 34 raptor studies that were cited in the final Avian and Bat Protection Plan (‘ABPP’), but not in the draft ABPP. A mitigation plan, such as the ABPP, does not need to be in final form to comply with NEPA’s procedural requirements.

“The draft EIS concluded that raptor use of the Project site was low and provided supporting evidence. Plaintiffs commented on the draft EIS and did not take issue with this conclusion. The final EIS was available for comment during the 30-day protest period, and Plaintiffs did not comment on the final ABPP’s comparison of raptor data, despite submitting comments on other aspects of the final EIS. Accordingly, Plaintiffs have not shown that the BLM acted in an arbitrary and capricious manner by not including certain raptor studies in the draft ABPP.

“Similarly, Plaintiffs have not shown that the methodologies used by the BLM in conducting migration surveys were arbitrary or capricious. While Plaintiffs question the BLM’s methodologies as they relate to the timing of raptor migration surveys, the final EIS contains a reasoned analysis of the migration and presence of Swainson’s hawks and other raptors at the Project site. We are ‘most deferential when reviewing scientific judgments and technical analyses within the agency’s expertise under NEPA’ and will not ‘impose [ourselves] as a panel of scientists.’

“Further, the BLM included a reasonably complete discussion of mitigation measures in the final EIS. It was not arbitrary and capricious for the final EIS to require turbine curtailment for golden eagles and not other raptors, because the special legal status of golden eagles justified different mitigation measures.

The project development company, Ocotillo Express LLC, is owned by Pattern Energy Group. The Ocotillo Wind Energy Facility (called OWEF in the record) is a 112-turbine, 265-MW wind energy project located on BLM-administered federal lands in California’s Imperial Valley. Pattern noted in a January 2014 brief in this case that construction of Ocotillo had been completed and the project at that point was operating.

Said the company’s January 2014 brief: “Ocotillo advances federal and state environmental and renewable energy objectives while also providing badly needed living-wage jobs in a region that has logged the highest unemployment rate in the nation. Ocotillo achieves these benefits while temporarily disturbing less than 460 acres and having a final footprint of about 120 acres, OSER 41, within a 10,151-acre federal right-of-way (‘ROW’). Before the Department of the Interior, acting through BLM, approved Ocotillo, it first required a comprehensive environmental review, reflected in an extensive Final Environmental Impact Statement (‘FEIS’), including exhaustive studies of current use of the site by birds and other wildlife. BLM also developed detailed measures to avoid, minimize and mitigate for Ocotillo’s impacts on birds and other wildlife, as well as other resources. The agency documented the results of this evaluation in a detailed Record of Decision (‘ROD’), including comprehensive conditions for protecting wildlife and the environment.”

The appellants in this case are the Desert Protective Council, Laborers’ International Union of North America Local Union No. 1184, Hector Casillas, John Norton, Jim Pelley, and Park Ewing.

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.