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Developer ducks protest to wind farm road plan  

Credit:  By Rebekah Kearn | Courthouse News Service | January 15, 2013 | www.courthousenews.com ~~

A federal judge upheld the grant that will let a wind developer build a service road across federal land to reach a wind farm in Kern County, Calif.

North Sky River Energy wants to build a 300-megawatt wind farm, with up to 102 wind turbines, on 12,781 acres of privately owned land northeast of Tehachapi in the southern Sierra Nevada mountain range.

Since the most direct and cost-effective plan route to the facility would cross federal land, however, North Sky needed a right of way from the Bureau of Land Management.

The bureau conducted an environmental assessment and decided that it needed to study the road project independently from the wind project.

It reasoned that the wind facility could exist without the road, and that North Sky would merely build the road across private land if it did not receive a federal right of way.

While the project road would measure 10 miles, the agency found that a private road would be 28 miles long, requiring more construction and disturbance to acreage.

Given these facts, the bureau made a finding of “no significant impact” for the road project. Finding that the project road would cause less environmental impact than a road on private land, the bureau granted North Sky a right of way.

In April 2012, the Sierra Club, Center for Biological Diversity, and Defenders of Wildlife challenged this decision, claiming that the bureau had no basis to conclude that a route over private land was feasible

They argued that the bureau should have studied the project under the National Environmental Protection Act since the proposed road will be on public land.

The bureau also should have studied the road project together with the wind project since they “are, in fact, components of the larger, comprehensive scheme to develop renewable energy on the site,” according to a brief from the plaintiffs.

Senior U.S. District Judge Anthony Ishii granted the bureau summary judgment Friday.

“Plaintiffs point to no authority for the proposition that the strength of the independent benefits to BLM from the road project must be sufficient to cause BLM to build the road with BLM’s money even in the absence of any wind project before the projects can be deemed unrelated,” Ishii wrote.

The Administrative Procedures Act prevents courts from overturning agency decisions unless the agency did not base its decision on “a consideration of relevant factors,” Ishii noted.

“BLM has shown that it was not unreasonable in allowing NSRE to build the road project at NSRE’s expense since BLM stood to benefit for the public purposes at no public cost,” the ruling states, abbreviating the names of the bureau and North Sky. “As this court understands its standard of review, this is all that BLM is required to show to support its decision that the wind project was not the ‘but for’ cause of the road project.”

The National Environmental Protection Act, or NEPA, claims also failed since the groups failed to show that their challenge involves a major federal action.

To advance this claim, the environmentalists argued that future of the wind farm hinged on the project road.

But Ishii said the bureau did its research into the private road option.

“Where the record establishes that these facts were before the BLM and considered by them (as is admittedly the case here) the court is in no position to impose a contrary conclusion simply because an opposing party is of the opinion that more proof should have been required,” Ishii wrote.

Arguments over the lack of an environmental impact statement (EIS) also smack of procedural, rather than environmental, concerns, according to the ruling.

Ishii also pointed out that Kern County produced an environmental impact report for the project under the California Environmental Quality Act (CEQA).

“While it is no doubt that plaintiffs disagree with the outcome of the state process, the court has no facts before it to conclude that requiring BLM to produce an EIS that takes into account the environmental impacts of the wind project would produce anything more than an opportunity for plaintiffs to advance the same arguments on the same facts that were advanced in the state CEQA process,” Ishii wrote.

Source:  By Rebekah Kearn | Courthouse News Service | January 15, 2013 | www.courthousenews.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments via e-mail.

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