On June 7, a three-judge panel at the U.S. Ninth Circuit Court of Appeals affirmed federal agency approvals for the right-of-way for the 186 MW Tule Wind power 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 the U.S. Bureau of Land Management’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.
Concerning plaintiffs’ allegations of BLM’s violations of the Migratory Bird Treaty Act, the panel held that the Act did not contemplate attenuated secondary liability on agencies like the BLM that act in a purely regulatory capacity, and whose acts do not directly or proximately cause the “take” of migratory birds. The panel concluded that the BLM did not act to “take” migratory birds without a permit within the meaning of the Act.
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 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 the construction of 128 wind turbines and supporting infrastructure, which could generate up to 200 MW.
In December 2010, the BLM released a lengthy draft environmental impact statement (EIS) for public comment.
Ultimately, the BLM decided to grant Tule a right-of-way for the development of a more modest wind-energy facility, which eliminated 33 of the originally proposed turbines. Moreover, in order to help reduce the risk of avian collisions with turbine blades, the approved project repositioned several wind 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.
The agency published a Record of Decision (ROD) in December 2011, memorializing its grant of a right-of-way. The ROD specified that the right-of-way grant would be issued for a 30-year term, with an option to renew.