Protect Our Communities Foundation v. Jewell
825 F.3d 571
| 9th Cir. | 2016Background
- BLM granted Tule Wind, LLC a 30-year right-of-way to build and operate a utility-scale wind project on ~12,360 acres in McCain Valley, San Diego County; project reduced from 128 to 95 turbines and repositioned turbines to reduce avian risk.
- BLM prepared a Draft and Final Environmental Impact Statement (EIS) and issued a Record of Decision conditioned on implementation of mitigation and monitoring, including an 85-page Project-Specific Avian and Bat Protection Plan developed with U.S. Fish & Wildlife Service (FWS).
- Plaintiffs (Protect Our Communities Foundation; Backcountry Against Dumps; Donna Tisdale) sued under the Administrative Procedure Act (APA), alleging NEPA violations (purpose/need, alternatives, mitigation, inadequate "hard look") and statutory violations (Migratory Bird Treaty Act (MBTA) and Bald and Golden Eagle Protection Act (Eagle Act)).
- District court granted summary judgment to federal defendants and intervenor Tule; Ninth Circuit consolidated appeals and reviewed agency action for arbitrary and capricious reasoning under the APA.
- The Ninth Circuit affirmed: EIS met NEPA’s requirements (purpose/need, alternatives, mitigation, and "hard look"); BLM not liable under MBTA or Eagle Act for granting the right-of-way; no APA violation for declining to require FWS permits pre-grant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA — Purpose & Need scope | Purpose/need too narrow, foreclosing alternatives | Statement reasonably included federal renewable-energy objectives and the agency's duty to respond to Tule’s application | Held: statement was adequately broad and reasonable |
| NEPA — Alternatives (distributed generation) | BLM improperly dismissed rooftop solar/distributed alternatives as infeasible | Distributed alternative was speculative, would not meet utility-scale goals, and posed feasibility/infrastructure problems | Held: dismissal reasonable under rule-of-reason; alternatives not required |
| NEPA — Mitigation and "hard look" (avian, noise, EMF, GHG) | Mitigation vague/adaptive; EIS failed to analyze noise (including infrasound), nighttime migrants, stray voltage, and lifecycle GHGs | EIS and 85-page Protection Plan provided sufficient baseline, monitoring, and adaptive measures; technical judgments supported by record | Held: EIS provided sufficient detail, took a "hard look," and reasonably relied on mitigation/adaptive management |
| MBTA / Eagle Act & APA liability for BLM | Granting the ROW without an FWS incidental-take permit makes BLM complicit and unlawful under MBTA/Eagle Act; APA requires BLM to withhold grant until permits obtained | BLM acted in a regulatory capacity; did not itself take birds; duties to police third-party compliance are not imposed by MBTA/Eagle Act; ROD conditions compliance on applicable laws | Held: BLM not liable under MBTA or Eagle Act; APA claim fails because agency action was too attenuated from any third-party take |
Key Cases Cited
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (standard for arbitrary and capricious review)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA requires sufficient environmental analysis, not particular substantive outcomes)
- City of Carmel-by-the-Sea v. U.S. Dep't of Transp., 123 F.3d 1142 (rule-of-reason for alternatives under NEPA)
- Lands Council v. McNair, 537 F.3d 981 (deference to agency technical determinations)
- Nat'l Parks & Conservation Ass'n v. U.S. Dep't of Transp., 222 F.3d 677 (mitigation measures need not be final or funded to satisfy NEPA procedural requirements)
- Humane Soc'y of the U.S. v. Glickman, 217 F.3d 882 (agency liable under MBTA when it directly authorizes intentional killing)
- Anderson v. Evans, 371 F.3d 475 (agency unlawfully authorized third-party conduct when statutory limits were misapplied)
- Ctr. for Biological Diversity v. Bureau of Land Mgmt., 698 F.3d 1101 (distinguishing ESA consultation duties from MBTA/Eagle Act obligations)