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Reply Brief of Petitioners Friends of the Columbia Gorge and Save Our Scenic Area v. Bonneville Power Administration

To try to justify its violations of NEPA (including a failure to consider any alternatives besides the Applicant’s proposal and a failure to take a hard look at the Project’s environmental impacts), BPA leans upon the slender reed of lacking direct siting authority over the Project’s wind turbines. But the inescapable reality is that BPA evaluated the proposed wind turbines and the requested interconnection to its power grid together as components of the single action alternative in the FEIS. Moreover, BPA has conceded that if it were to deny the interconnection the turbines would not be built. Accordingly, BPA was required to comply fully with NEPA to inform its decision whether to approve or deny the interconnection.

Ultimately, BPA has authority to say “no”—to the interconnection, and thereby to the entire Project—and NEPA requires it to make an informed decision and thus potentially avoid or minimize harm to the environment. BPA’s litigation position posits an alternative reality in which the agency did not evaluate the wind turbines and interconnection together as a single action, and did not admit that the interconnection is a necessary element of the Project without which the wind turbines cannot be built. The analyses adopted in the FEIS—not the agency’s current litigation position—must be the focus of this Court’s review.

BPA’s arguments rely almost entirely on cases in which federal actions were completely distinct from non-federal actions—rather than intertwined, as the proposed wind turbines and interconnection are here—and on knocking down straw-man arguments that Friends does not make. The fact that BPA can cite no case where a court upheld an EIS that considered only a single action alternative involving several undefined variables underscores the unprecedented way BPA evaded NEPA’s express requirements.

Although BPA may “believe[] that the Project will be implemented in an environmentally responsible manner,” it failed to follow the procedures NEPA requires to draw an informed conclusion about likely harm from the proposed Project as compared to reasonable alternatives. BPA asks this Court to condone a NEPA analysis that in essence evaluated only a single, worst-case alternative and that lacked any evaluation whether the proposed mitigation measures could effectively reduce or eliminate harm.

Where an agency could prevent environmental harm, as BPA could do here by denying the requested interconnection, NEPA and this Court’s precedents require the agency’s decision to be fully informed and to include a complete understanding of the effects of reasonable alternatives—even alternatives not within BPA’s jurisdiction. An evaluation showing that changes to the number, locations, capacities, heights, or other details of the proposed wind turbines would cause significantly less harm to birds, bats, or scenic values might have led BPA to deny the requested interconnection. BPA’s uninformed decision violates NEPA and its procedures for ensuring informed, democratic decisionmaking.

Sept. 26, 2016, Docket No. 15-72788, United States Court of Appeals for the Ninth Circuit

Download original document: “Reply Brief of Petitioners Friends of the Columbia Gorge and Save Our Scenic Area v. Bonneville Power Administration [1]