993 F. Supp. 2d 1126
C.D. Cal.2012Background
- Western Watersheds Project sued the U.S. government agencies (BLM, DOI, FWS) over approval of the Ivanpah Solar project (ISEGS) and related actions.
- BrightSource Energy intervened as an opponent/intervenor to the project.
- Plaintiff challenged NEPA, FLPMA, and ESA compliance; agency decisions were challenged after a prior injunction had been denied.
- Defendants and Intervenor cross-moved for summary judgment; the court held hearings on January 27, 2012.
- The court ultimately denied Plaintiff’s motion and granted Defendants’ and Intervenor’s motions, finding no NEPA/FLPMA/ESA violations based on the full administrative record.
- The FEIS/ROD/biological opinions concluded that the project would not significantly affect the desert tortoise population and that any translocation/mitigation measures were adequate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA hard look at tortoise impacts | Pl.’s position: FEIS understates tortoise impacts and omits significant effects on juvenile tortoises and eggs. | Defendants argue adult tortoise focus is reasonable; framework satisfied and significant juvenile impacts were not necessary to discuss. | Defendants win; FEIS adequate and not arbitrary or capricious. |
| Need for a supplemental EIS | New tortoise population data and altered translocation strategies require a supplemental EIS. | 2011 BA/BiOp analyzed updates; no substantial new information requiring supplement. | Defendants win; no supplemental EIS warranted. |
| Connected actions: Eldorado-Ivanpah transmission line | Transmission line should be treated as a connected action requiring joint analysis. | Transmission line not a connected action; FEIS adequately addresses combined impacts. | Defendants win; no improper segmentation. |
| Public purpose and need for ISEGS | FEIS simply adopts BrightSource’s interests as BLM’s public purpose and need. | BLM’s purpose and need adequately articulated and supported. | Defendants win; public purpose/need properly defined. |
| Alternative analyses under FLPMA | Bad faith for not detailing Ivanpah Dry Lake Bed and Harper Lake alternatives. | Those alternatives were infeasible; FLPMA requires examining effects of detailed alternatives, not unfounded options. | Defendants win; reasonable explanation sufficient. |
Key Cases Cited
- Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (arbitrary and capricious review of agency action; hard-look standard)
- Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147 (9th Cir. 2006) (NEPA review; thorough discussion of significant environmental impacts)
- Marsh v. Oregon Nat. Resources Council, 490 U.S. 360 (Supreme Court 1989) (establishes standard for when to require an EIS; factual disputes vs. legal questions)
- Methow Valley Citizens Council v. U.S. Forest Serv., 490 U.S. 365 (1989) (NEPA: hard look and balancing of environmental costs and benefits)
- Pac. Rivers Council v. U.S. Forest Serv., 689 F.3d 1012 (9th Cir. 2012) (scope of NEPA analysis; analysis need not be perfect if reasonable)
- EPIC v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir. 2006) (NEPA/ESA distinctions; reliance on ESA findings allowed)
- Center for Biological Diversity v. U.S. Dept. of Interior, 581 F.3d 1063 (9th Cir. 2009) (9th Cir. on NEPA and agency discretion)
- Kern County Farm Bureau v. Allen, 450 F.3d 1072 (9th Cir. 2006) (best available data standard in ESA context)