Tule Wind Farm Passes NEPA Test, Again
On March 6, 2017, the United States District Court for the Southern District of California rejected a challenge to a wind project in southeastern San Diego County, with known potential impacts to golden eagles.1 The project consisted of two phases, Phase I which involves Bureau of Land Management (BLM) approval of construction of sixty-five turbines on federal land, and Phase II involves Bureau of Indian Affairs (BIA) approval of construction of twenty turbines on land held in trust from the Ewiiaapaayp Band of Kumeyaay Indians on the ridgelines above the McCain Valley. The March 6 decision involved a challenge to the BIA approval, and the court granted summary judgment in favor of the United States and the project proponent, Tule Wind, LLC (Tule).
Background: In 2011, the BLM issued an environmental impact statement (EIS) for Phase I of the project, The BIA served as a cooperating agency. The 2011 EIS discussed Phase II, including the fact that all, none, or part of Phase II could be authorized pursuant to the BIA’s discretion. The EIS stated that the BIA would determine risk to eagles in consultation with required agencies and tribes. The 2011 EIS further stated: “Turbine locations exceeding acceptable risk levels to eagles…were not to be authorized for construction.”2 After 2011, the BIA continued to assess the impacts of Phase II, including the impacts on eagles. Both the United States Fish and Wildlife Service (USFWS) and the California Department of Fish and Game (CDFG) sent formal memoranda to the BIA cautioning that Phase II had “a high potential to result in injury or mortality of golden eagles…and the loss of golden eagle breeding territories.”3 Both USWFS and CDFG recommended project modifications to minimize risks to eagles. In its decision authorizing Phase II, the BIA adopted some, but did not agree with or adopt all of USFWS’ or CDFG’s recommendations
The Protect Our Communities Foundation first challenged the BLM’s approval of Phase I as violating NEPA. BLM’s approval was upheld by both the district court and the Ninth Circuit Court of Appeals.4 In 2014, the Protect Our Communities Foundation filed suit against the BIA alleging that the BIA violated National Environmental Policy Act (NEPA), the Eagle Act, and the Migratory Bird Treaty Act (MBTA). Tule, the project proponent, and the Tribe were granted leave to intervene. On March 6, 2017, the court upheld the BIA’s NEPA process, including the BIA’s decision to rely on the 2011 EIS and the BIA’s decision not to prepare a supplemental NEPA document.5
The BIA Properly Relied on 2011 EIS: The United States District Court for the Southern District of California first held that the BIA properly relied on the 2011 EIS. Protect Our Communities, while acknowledging that the BIA was a cooperating agency in the 2011 EIS, nevertheless argued that the BIA’s exclusive reliance on that EIS was improper because it included specific mitigation measures with which the BIA did not comply and because it allegedly did not consider a reasonable range of alternatives for the Phase II portion of the project. Protect Our Communities argued that the BIA was absolutely prevented from approving Phase II by the other agencies’ risk classification with respect to eagles. The court, however, found that BIA, as the appropriate land management agency for the portion of the project on tribal lands, properly exercised its discretion in concluding that the risk to golden eagles was not significant in light of mitigation measures “and that any remaining risk was acceptable in light of the countervailing benefits flowing from approving the lease.”6 The court further concluded that the 2011 EIS only required the BIA to consult with FWS and CDFG and consider their comments, which the record reflected that the BIA did.
The court also upheld the range of alternatives that the BIA considered. First, the court rejected the argument that BLM never intended the EIS to be a “hard look” at both phases, based on the language of the EIS. The court next rejected the argument that the alternatives analysis was flawed because it considered only two alternatives, the no-build alternative and the 18-turbine alternative. Relying on Department of Public Transportation v. Public Citizen,7 the court first noted that the range of alternatives argument was “almost certainly precluded” because no plaintiff objected to a lack of mid-range alternatives until the lawsuit. The court held, however, that even if not waived, the 2011 EIS provided “guideposts as to the spectrum in which the BIA was to work,” including approval of all, none, or part of Phase II.8
The BIA Was Not Obligated to Prepare a Supplemental NEPA Document: The court rejected Protect Our Communities’ argument that the BIA was required to supplement the EIS based on post-2011 data and substantial changes in the project design. With respect to the new data, the court noted that while the data may have been new, it was not significant, as required by NEPA’s implementing regulations. The post-2011 data confirmed or “slightly augment[ed]” the 2011 EIS’s concerns regarding potential eagle fatalities.9 With respect to the changed project designs, which were based on the BIA’s approval of construction of 20 turbines instead of the 18 discussed in the EIS (although the EIS mentioned the potential for two additional turbines in areas straddling BLM and trust lands), the court noted that the BIA provided a plain and accurate explanation of what it termed a numerical discrepancy. In addition, maps in the cumulative impacts section of the EIS contemplated up to 21 turbines, and thus the proposal of 20 turbines was not a design change at all.
Take-Away: The federal district court’s decision reflects the deference due to agency decision-making under NEPA. The court acknowledged Protect Our Communities Foundation’s “genuine and deep concern for our shared environment.”10 The court also acknowledged that NEPA and its implementing regulations are designed to give full consideration to those types of concerns. The court, however, concluded that NEPA’s requirements were “adequately observed” by the BIA, in that the BIA prepared a “carefully considered” record of decision, “based on and calibrated by a 2011 EIS that engaged in coherent and comprehensive analysis of potential eagle harm.”11 The court’s decision upholding the BIA’s discretion to approve the project, in the face of known eagle impacts, demonstrates the court’s understanding of NEPA’s procedural mandate—the BIA’s approval of Phase II was done “with full knowledge of potential impacts and after considering the relevant factors and articulating a rational connection between the factors found and the choices made.”12
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2 Id. at *4 (quoting EIS, alternations omitted).
3 Id. at *6 (quoted authority omitted).
4 Protect Our Communities Foundation v. Jewell, 825 F.3d 571 (9th Cir. 2016).
5 The court also found the BIA adequately disclosed information to the public.
6 POC II, 2017 U.S Dist. LEXIS 31541, at *15.
7 541 U.S. 752, 764-65 (2004).
8 POC II, 2017 U.S Dist. LEXIS 31541, at *20.
9 Id. at *23.
10 Id. at *28.
11 Id. at *28-29.
12 Id. at *29.
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