NEPA Does Not Require An Agency To Guarantee Project Compliance with Environmental Laws

In an interesting decision last week, the 9th Circuit Court of Appeals rejected challenges to BLM’s decision to issue a right-of-way permit for Tule Wind’s plan for a wind farm southeast of San Diego.  tule-support-buttonIt’s not exactly earthshattering, but it is a helpful decision both for decisionmakers reviewing wind farm applications and for wind farm developers.  Here are some of the highlights:

  • BLM’s inclusion of DOI’s goal under the 2005 Energy Policy Act to increase nonhydropower renewable energy on federal lands as part of the “purpose and need” statement under NEPA was appropriate.
  • Exclusion of a distributed generation alternative was appropriate, at least in part because use of rooftop solar to generate the same amount of power would have required 100,000 new rooftop solar units and BLM reasonably concluded that such a massive expansion of rooftop solar would be “speculative.”
  • Use of an “adaptive management plan” as part of the mitigation measures was reasonable.
  • BLM approval of the right of way did not violate the Migratory Bird Treaty Act, even assuming that the project would result in migratory bird fatalities, where BLM was acting in a “purely regulatory capacity” and nothing BLM did would be a proximate cause of any “take” of migratory birds.

This last is probably the most important aspect of the case.  As BLM noted, its approval of the right-of-way is contingent upon Tule Wind complying with all applicable laws – meaning that, if operation of the wind farm might cause a take, it had better comply with the MBTA and the Bald and Golden Eagle Protection Act.

The potential significance of this aspect of the case is indicated by the fact that, within a day of the Court’s decision, both the plaintiffs and the defendant in the Cape Wind litigation had sent letters to the court in that case discussing whether the holding in the Tule Wind case applied to the Cape Wind appeal.  Plaintiffs there distinguished Cape Wind from Tule Wind, so time will tell, but it is certainly an issue that may recur.

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