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Federal court remands renewable energy project for additional explanation; Delay ensues  

Credit:  Peter Whitfield | BakerHostetler | 2/17/2015 | www.jdsupra.com ~~

Last week, a federal district court in Nevada ruled that the Bureau of Land Management (BLM) and U.S. Fish and Wildlife Service (FWS) failed to adequately explain a decision to authorize a proposed wind energy project. The court remanded the decision to BLM for analysis the court determined to be absent from the administrative record and ordered the agency to prepare a supplemental environmental impact statement (EIS) to address new information regarding the presence of golden eagles within the project area. This decision reinforces the importance of developing and maintaining a thorough administrative record for projects requiring federal approval.

In Bundorf v. Jewell, a group of plaintiffs filed suit against BLM and FWS, claiming that the agencies violated the National Environmental Policy Act (NEPA) and a number of other environmental laws in approving the Searchlight Wind Energy Project in southern Nevada. The project consists of 87 wind turbine generators and energy transmission systems that will occupy approximately 160 acres of land in the Piute Valley. On account of the project’s location, the BLM and FWS had to analyze the project’s potential impacts on the environment, including impacts on protected species such as the desert tortoise, golden and bald eagles, and other bird and bat species. Given the project’s potential impacts, the project proponent had to prepare a Bird and Bat Conservation Strategy (BBCS) to assist in mitigating impacts to bat and bird species. In challenging this project, the plaintiffs argued that the wildlife analyses performed contained significant data gaps and inconsistent conclusions that prevented the agencies from properly evaluating the adverse effects on the species.

In addressing the plaintiffs’ arguments, the court found that the agencies failed to clearly explain the adverse effects of noise and loss of suitable habitat to the desert tortoise. Op. at 9. The court indicated that it was unclear whether the agencies considered the long-term effects of blasting (which would be used to install foundations in bedrock) on desert tortoises. Id. at 10. The court also criticized BLM’s analysis of the project’s potential risks to eagles because the administrative record did not contain a report generated from survey data that the project proponent referenced in the BBCS, and it did not reference new survey data collected by the BLM. Id. at 10, 15. Additionally, the court concluded that the agencies’ discussion of risks and mitigation measures for eagles and bat species needed further explanation. Id. at 15. Based on these record deficiencies, the court concluded it could not rule on the substantive merits of the plaintiffs’ claims. Id. The court ordered FWS and BLM to augment the administrative record on remand and prepare a supplemental EIS addressing the project’s potential impacts on golden eagles, incorporating the new survey data BLM collected. Id. at 16.

This decision impacts not only the responsible federal agencies, but also the private project proponent which now faces a delay in its ability to bring the proposed renewable energy project online. This unfortunate result might have been prevented if a more thorough administrative record had been developed during the environmental review. While the compilation of the administrative record is an obligation reserved for federal agencies, a project proponent can still play a substantial role regarding its quality. Here is how.

The Administrative Procedure Act (APA) is the legal vehicle allowing for judicial review of these types of federal agency decisions. Review under the APA is not unlimited, however, but generally restricted to “exhausted” issues – those raised to the agency during the public comment period. This process affords an agency the opportunity to address perceived defects in its analysis before being hauled into court to defend them in litigation. Because public comments generally are available to the public, a project proponent can review the comments and submit a response to the agency, and the agency will incorporate the response into the administrative record. This practice can enhance the record to make sure all outstanding issues are addressed or corrected before the agency’s final decision. It also may help reduce the likelihood of the type of remand ordered in Bundorf v. Jewell.

Source:  Peter Whitfield | BakerHostetler | 2/17/2015 | www.jdsupra.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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