A three-judge panel at the U.S. Ninth Circuit Court of Appeals on Sept. 13 upheld the U.S. Bureau of Land Management‘s (BLM) approval of an environmental review on a six-state solar energy development plan.
The question at stake was whether BLM unlawfully failed to consider a stand-alone alternative plan relying on “degraded” lands in its Programmatic Environmental Impact Statement and Record of Decision. BLM’s goal was to develop a utility-scale solar energy plan that is flexible, efficient and able to meet projected demand. In selecting land for the program at this early stage, the agency chose to balance a variety of considerations—the size of the plots and the available transmission capacity—rather than develop a complete alternative plan focused solely or predominantly on whether the land is degraded.
In addition, BLM’s impact statement discussed why a degraded land alternative was not developed more exhaustively, and the bureau’s chosen plan does in fact favor the use of degraded land for specific projects. Plaintiffs including the Western Lands Project and Desert Protective Council aren’t entitled to consideration of their preferred plan “in the form of a full-blown alternative," said the Sept. 13 court ruling. "The bureau’s consideration of the alternatives was not arbitrary, capricious, an abuse of discretion or otherwise contrary to law," the ruling added.
BLM in 2012 published a Record of Decision addressing solar energy development on BLM-administered lands in Arizona, California, Colorado, Nevada, New Mexico and Utah. The Record of Decision (called the “Solar ROD”) adopted an alternative analyzed in the Final Programmatic Environmental Impact Statement for Solar Energy Development in Six Southwestern States (“Solar PEIS”).
In the Solar PEIS, BLM identified the need to ensure consistent application of measures to avoid, minimize, and mitigate the potential impact of solar energy development on public lands. The broad, programmatic study identifies approximately 285,000 acres of public lands as suitable for potential utility-scale solar energy development and classifies approximately 79 million acres as inappropriate for utility-scale projects based on ecological or cultural resource considerations.
The Interior Dept. noted in an April 2015 brief in this case that BLM is under Congressional mandate to seek to increase production and transmission of renewable energy. The Energy Policy Act of 2005 states that the Secretary of the Interior “should, before the end of the 10-year period beginning on the date of enactment of this Act, seek to have approved non-hydropower renewable energy projects located on the public lands with a generation capacity of at least 10,000 megawatts of electricity.” As of 2012, when the Solar PEIS was prepared, BLM had approved forty-three geothermal projects with a total generation capacity of 1,350 MW, thirty-two wind projects with a total capacity of 1,221 MW, and eleven solar projects with a total capacity of 4,512 MW.
Also, the Energy Independence and Security Act of 2007 requires the U.S. Department of Energy to assess methods to integrate electric power generated at utility-scale solar facilities into regional electricity transmission systems and to identify transmission system expansions and upgrades needed to move solar-generated electricity to areas of demand throughout the United States.
In addition to statutory mandates, Executive Order 13212 directs federal agencies to “take appropriate actions, to the extent consistent with applicable law, to expedite projects that will increase the production, transmission, or conservation of energy.” Department of the Interior Secretarial Order 3285A11 sets a policy goal of identifying and prioritizing specific locations best suited for large-scale production of solar energy on public lands.