A federal judge on Aug. 17 refused to grant a preliminary injunction sought by environmental groups related to their appeal of federal approvals for the 247-MW Panoche Valley solar project in California.
On April 15 of this year, Defenders of Wildlife, the Sierra Club and the Santa Clara Valley Audubon Society challenged at the U.S. District Court for the Northern District of California the actions of the U.S. Fish and Wildlife Service (FWS) and U.S. Army Corps of Engineers with respect to the development of a solar facility in the Panoche Valley of California. The project developer, Panoche Valley Solar LLC (PVS), has intervened as a defendant.
PVS proposes to develop and operate a solar energy project in the ecologically sensitive Panoche Valley in San Benito County. When PVS first advanced this project in 2009, PVS proposed a 1,000-MW solar facility built on 10,000 acres. Now, PVS proposes a 247-MW solar facility comprised of approximately 1,529 acres of photovoltaic panels installed on a 2,154-acre project site.
As designed, the project will result in the discharge of dredged or fill material into 0.121 acres of United States’ waters, which is where the challenged Corps permitting comes in. This discharge is required to provide stream crossings that are necessary for fire breaks and for emergency vehicles to access the project site.
The Panoche Valley is home to a variety of Endangered Species Act (ESA)-listed species, including the blunt-nosed leopard lizard, the San Joaquin kit fox, and the giant kangaroo rat. Each of these species has been in decline due to loss of habitat and the fragmentation of existing habitat into smaller, unconnected pieces. To reduce the impacts of the solar project on the blunt-nosed leopard lizard, San Joaquin kit fox, and giant kangaroo rat, the proposed solar project includes a variety of avoidance and conservation measures. For example, the project was designed to avoid areas with high densities of listed species. In addition, PVS proposes to hire FWS-approved biologists to monitor construction work, and to require all project personnel to participate in an environmental education program to learn to identify and protect listed species.
PVS will not begin construction until an FWS-approved biologist determines that no more giant kangaroo rats are expected to use the project site. Further, PVS committed to the acquisition and permanent protection of 25,618 acres of existing habitat. PVS has already purchased over 24,000 acres of conservation land in three primary areas: Valley Floor Conservation Lands (2,514 acres), Valadeao Ranch Conservation Lands (10,772 acres), and Silver Creek Ranch Conservation Lands (10,890 acres). These lands are contiguous to or near the project site and consist of generally suitable habitat that was privately owned.
Wrote Judge Lucy H. Koh in the Aug. 17 decision: “In sum, having reviewed the six arguments raised by Plaintiffs, the Court concludes that Plaintiffs do not demonstrate a likelihood of success on the merits of Plaintiffs’ claim that FWS violated the ESA by failing to consider the best available scientific data when drafting the 2016 BiOp. Accordingly, the Court concludes that Plaintiffs do not establish a likelihood of success on the merits of Plaintiffs’ derivative claim that the Corps violated the CWA by relying on the 2016 BiOp.” BiOp means a biological opinion.
The judge added: “Plaintiffs do not establish a likelihood of success on the merits of Plaintiffs’ claims asserted in the instant motion, as discussed above. Accordingly, the Court need not consider irreparable harm, the balance of equities, or the public interest.”