The U.S. Ninth Circuit Court of Appeals on Aug. 17 rejected an attempt by the Protect Our Communities Foundation to get the full court to hear an appeal of a June 7 ruling by a three-judge panel that supported federal approvals for the 186-MW Tule Wind LLC project.
The environmental group’s July 22 petition for a rehearing en banc was denied. Noted the Aug. 17 denial : “The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc.”
This appeal tried to raise the issue of whether a federal agency—here, the Bureau of Land Management—may authorize a project to be built on federal land, knowing that the project will kill migratory birds in violation of the Migratory Bird Treaty Act (MBTA). In resolving that issue, the three-judge panel held that, even if it is inevitable that the wind power project at issue will kill birds protected by the MBTA, and BLM also knows that the recipient of the BLM right-of-way has no intention of obtaining an MBTA permit prior to the unlawful killing, the BLM decision authorizing the project is nonetheless “in accordance with law” within the meaning of the judicial review provision of the Administrative Procedure Act (APA).
The environmental group argued that this ruling contravenes the Supreme Court’s admonition that the APA “requires federal courts to set aside agency action that is ‘not in accordance with law,’ which means, of course, any law, and not merely those laws that the agency itself is charged with administering.” It said the panel ruling also conflicts with other rulings from this court setting aside federal agency authorizations of third party conduct on the grounds that those authorizations will result in violations of federal environmental law.
On June 7, the three-judge panel affirmed federal agency approvals for the right-of-way for the 186-MW Tule Wind project in California. The panel affirmed the district court’s summary judgment in favor of the federal agencies and officials and intervenor Tule Wind in an action challenging BLM’s decision to grant a right-of-way on federal lands in southeast San Diego County. The panel held that the BLM was not liable under the National Environmental Policy Act, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, or the Administrative Procedure Act for its regulatory decision to grant Tule a right-of-way to develop and operate a renewable wind energy project.
Specifically, concerning plaintiffs’ allegations that the BLM failed to comply with the National Environmental Policy Act in preparing the environmental impact statement, the panel held that:
- the district court properly determined that the environmental impact statement’s purpose-and-need statement was adequately broad;
- the BLM acted within its discretion in dismissing alternative proposals;
- the mitigation measures provided ample detail and adequate baseline data for the agency to evaluate the overall environmental impact of the project; and
- the environmental impact statement took a “hard look” at the environmental impact of the project.
Protect Our Communities Foundation, Backcountry Against Dumps and Donna Tisdale brought this federal court action. They named several federal defendants in this action, including the Bureau of Land Management (BLM), the Department of the Interior, and various officials of those agencies. The district court had also rejected plaintiffs’ challenges and granted summary judgment to the defendants.
Plaintiffs challenged a right-of-way grant by the BLM that would permit Tule to construct and operate a wind energy facility on 12,360 acres of land in the McCain Valley, 70 miles east of San Diego. Tule’s original right-of-way proposal envisioned 128 wind turbines which could generate up to 200 MW. Ultimately, the BLM decided to grant Tule a right-of-way for the development of a more modest facility, which eliminated 33 turbines. Moreover, in order to help reduce the risk of avian collisions with turbine blades, the approved project repositioned several turbines that were originally proposed to be located on top of ridgelines. As modified, the project was expected to generate up to 186 MW. In October 2011, the BLM released a final EIS reflecting these modifications.