The 9th Circuit said the federal government properly granted a right-of-way over federal land for a wind energy project on private land near Tehachapi, Calif. without formal environmental analysis.
Plaintiffs’ attorney Jason Rylander said the environmental groups he represented were disappointed by the Wednesday decision.
“I think it’s an unfortunate ruling,” he told Courthouse News in an interview. “When private developers seek to use public benefits, in this case land, they should expect to comply with federal environmental laws and take account of the public’s environmental rules for the project.”
Rylander said his clients – the Sierra Club, the Center for Biological Diversity, and Defenders of Wildlife – do not plan to appeal.
“We’re still reviewing the opinion, but we’d have to seek full en banc review, and there are difficult hurdles to get them to take it up. So it’s fair to say that further appeals are unlikely,” he said
North Sky River Energy built a 300-megawattt wind farm with roughly 100 wind turbines across 12,781 acres of privately owned land northeast of Tehachapi .
The Tehachapi Pass, 35 miles southeast of Bakersfield in the southern Sierra Nevadas, is the geological border between Northern and Southern California. Like many mountain passes in California, winds blow nearly constantly there.
North Sky decided the cheapest way to connect its wind farm with a state highway was via a 10-mile access road across federal land, and petitioned the Bureau of Land Management for a right of way.
After doing an environmental assessment, the BLM concluded that a road through public land would do less environmental damage than a longer road on private land. It issued a finding of no significant impact for the road, exempting it from consulting with the U.S. Fish and Wildlife Service and from preparing a formal environmental impact statement under the National Environmental Policy Act.
The wind farm and road have already been built, attorney Rylander said.
His clients sued the BLM in 2012. They said it should have studied the road project and the wind facility, as parts of a comprehensive project, and that NEPA-compliant environmental analysis was necessary because the road is on federal land.
Senior U.S. District Judge Anthony Ishii was no persuaded. He ruled in January 2013 that the BLM properly approved the road because it was not a major federal action.
A three-judge 9th Circuit panel affirmed on Wednesday.
The environmentalists argued on appeal that the BLM should have consulted with Fish and Wildlife Service under the Endangered Species Act, or alternatively should have prepared an environmental impact statement under NEPA that included the wind farm.
The appeals court rejected both arguments.
Since North Sky had the option to build the road across private land, the road and wind farm are separate projects. The BLM thus had no duty to initiate consultation on the wind farm because it is on private land and therefore not subject to agency action, Judge Johnnie Rawlinson wrote for the 9th Circuit panel.
Analysis of the wind farm under NEPA is not required because it is not connected with the road project.
“The road project was independently useful for providing dust and stormwater control and limiting access to the Pacific Crest Trail. And, North Sky would likely have developed the wind project even without the access provided by the road project because it could have accessed its land using the private road option. Thus, these projects had independent utility,” Rawlinson wrote.
The BLM did analyze the North Sky facility as a “cumulative effect” of the road project in its environmental assessment, which, given the facts, was the only environmental analysis necessary and not a violation of NEPA, Rawlinson found.
Circuit Judge Richard C. Tallman and Senior District Judge Raymond J. Dearie concurred.
Attorney Rylander insisted that consultation under the Endangered Species Act concerning the wind farm should have applied to the road project.
“We are already seeing mortality of golden eagles at the site, which it is not permitted to take,” he said. “Condors have also been cited closer and closer to the site. This is beyond a ‘might be’ situation; they are in the area.”
He noted that the ruling makes North Sky alone responsible for any further take.
“If its wind turbines are whacking golden eagles and condors and other migratory birds, they could be fined and prosecuted,” he said.
The facility could avoid that by seeking incidental take permits, developing critical habitat plans under the Endangered Species Act and asking for the government’s help in creating additional mitigation measures to protect birds, he said.
“It remains to be seen if North Sky will be a good citizen and do that though,” he added.North Sky was represented by Zachary Walton, Christine Griffith and Elizabeth Bridges with the SSL Law Firm in San Francisco, who did not immediately respond to requests for comment.
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