Appeals court upholds dismissal of BLM-approved project

Source: Scott Streater, E&E reporter • Posted: Wednesday, November 2, 2016

A federal appeals court has dismissed a Virginia energy company’s request to overturn a federal judge’s ruling last year that threw out the Obama administration’s approval of what was projected to be Nevada’s largest wind power project.

The 9th U.S. Circuit Court of Appeals in San Francisco dismissed the challenge on something of a technicality. The appeals court’s order said U.S. District Judge Miranda Du’s decision last year merely remanded approval of the 200-megawatt Searchlight Wind Energy Project back to the Bureau of Land Management to address a host of deficiencies, and did not constitute a final decision that can be appealed.

In essence, the appeals court said BLM could still make the necessary changes and move the project forward, thereby granting Charlottesville, Va.-based Apex Clean Energy the relief it sought.

Further complicating matters is the fact that BLM and the Interior Department are not part of the appeal, which was made by Apex.

“A remand order is ordinarily final only for purposes of appeal by the agency” — in this case, BLM. Apex, the court wrote, “will have the opportunity to protect its interests on remand and, if necessary, on appellate review.”

The appeal’s court decision is the latest development following Du’s October 2015 order throwing out BLM’s final environmental impact statement for Searchlight Wind, as well as a biological opinion conducted by the Fish and Wildlife Service (Greenwire, Nov. 4).

Former Interior Secretary Ken Salazar signed a record of decision formally approving the project in March 2013.

Legal experts said this marked the first time a court formally ruled invalid a final EIS, biological opinion and record of decision for a renewable energy project.

The order is based on a lawsuit filed in April 2013 in U.S. District Court for the District of Nevada in Las Vegas by two groups — Basin and Range Watch and Friends of Searchlight Desert and Mountains — and three residents who live near the proposed wind project against Salazar, BLM and FWS (Greenwire, April 17, 2013).

They claim the federal agencies failed to properly analyze the full impacts of the project on sensitive wildlife species and nearby residents. The 87 proposed wind turbines, as tall as 428 feet, would be visible from the Lake Mead National Recreation Area to the east, as well as the town of Searchlight, Nev., where the plaintiffs say the light and noise from the spinning turbines likely would negatively affect property values and quality of life.

Du, an appointee of President Obama, ruled that the final EIS, biological opinion, record of decision and subsequent right-of-way grant are invalid.

Du directed that “FWS and BLM should, at a minimum, address gaps in the FEIS’s and [biological opinion’s] analyses of impacts to golden eagles and desert tortoises.”

The order will likely require BLM to conduct a full supplement to the final EIS that could take months to complete; FWS would need to issue a new biological opinion that addresses “the density of desert tortoises,” as well as “the adverse effects on desert tortoise habitat due to noise” during construction and operation of the wind farm, according to Du’s order.

BLM’s supplement to the final EIS would need to address the agency’s “conclusions about risks to bald eagles, protocols for golden eagle surveys, and risks to and mitigation measures for bat species,” Du wrote. The plaintiffs claimed that BLM significantly undercounted the number of golden eagle nests within 10 miles of the project site.

BLM filed an appeal in November 2015 but later dismissed it. It’s not clear why BLM withdrew its appeal. A BLM spokeswoman did not respond to a request to comment.

Dave Becker, a Portland, Ore.-based lawyer representing Basin and Range Watch and Friends of Searchlight Desert and Mountains in the case against the Searchlight Wind project, said BLM’s attorneys told him the agency felt it could address the deficiencies outlined by Du in a supplemental EIS and a redone biological opinion.

Dylan Fuge, top counselor to BLM Director Neil Kornze on energy policy issues, declined in an interview last month with E&E News to discuss specifics about the Searchlight Wind case, though he said the agency is “moving forward” on issues involving the project.

But Becker said that, to his knowledge, BLM has not started the process.

“My clients feel that the ultimate decision, once you lay all the information out on the table, is BLM saying, ‘No, you’re not going to build this,'” Becker said.

An Apex spokesman did not respond to a request to comment on this story by publication time.

Apex touted itself on the company’s website as “the market leader in the United States,” with 1,042 MW of “new wind capacity installations” last year. That’s enough electricity, the company said, “to supply the population of a city the size of Boston or San Francisco each year for the life of the facilities.”

But Kevin Emmerich, co-founder of the Basin and Range Watch group, said the proposed wind farm location is not “a good choice,” noting the project site is surrounded by the Piute-Eldorado Valley Area of Critical Environmental Concern for Mojave Desert tortoise.

“An industrial-scale wind energy project in this location would not only harm wildlife, but be visible for many miles at both day and night,” Emmerich said. “The view and quality of life would be degraded for local residents. The project would be visible from three different National Park units and Sprit Mountain, a site sacred to several Native American tribes in the region.”

He said the groups have asked BLM to designate the entire area “wind energy free,” in an effort to “protect wildlife, local residents and cultural values.”