Federal judge tosses out BLM approval of Nev.’s largest project

Source: Scott Streater, E&E reporter • Posted: Thursday, November 5, 2015

A federal judge in Nevada has thrown out the Obama administration’s approval of what was projected to be the Silver State’s largest wind power project, ruling that the Interior Department did not properly evaluate potential impacts to golden eagles and Mojave Desert tortoises.

U.S. District Judge Miranda Du’s seven-page order issued late Friday is a sharp rebuke of the final environmental impact statement (EIS) for the 200-megawatt Searchlight Wind Energy Project conducted by the Bureau of Land Management and a biological opinion conducted by the Fish and Wildlife Service. Former Interior Secretary Ken Salazar signed a record of decision formally approving the project in March 2013.

Legal experts say this is the first time a court has 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.

“The Searchlight Wind project area is next to a national recreation area and has the highest concentrations of desert tortoises and golden eagle nests in Nevada,” said Dave Becker, a Portland, Ore.-based lawyer representing the two groups and three residents challenging the project. “It’s a stupid place for a wind project.”

But more than that, Becker said, the order exposes what he calls BLM’s rush, at least in the first few years of the Obama administration, to approve commercial-scale renewables projects on federal lands.

“Corners are being cut on protecting, particularly in the desert, the native species and viewsheds, and in some cases the cultural sites that are out there,” he said in an interview. “I think this is emblematic of the rush to market, the fast-tracking that has been one of the features of the Obama administration’s BLM. They want to put these [projects] up without a lot of discrimination of which ones are going to produce a significant amount of energy and have a relatively small level of impact.”

Emily Beyer, an Interior Department spokeswoman, said the agency is still reviewing the order and that Interior does not comment on matters pertaining to ongoing litigation.

Beyer declined to say whether Interior would appeal Du’s order to the 9th U.S. Circuit Court of Appeals.

The Searchlight Wind installation is one of 11 commercial-scale wind power projects, with a total capacity to produce 4,766 MW of electricity, that have been approved by the Obama administration since 2009. If built on more than 9,300 acres of federal land about 60 miles southeast of Las Vegas, the Searchlight Wind project would have the capacity to power about 70,000 homes.

Salazar, in signing a record of decision in 2013, hailed it as a major advancement of the administration’s ongoing efforts to use federal lands to drive the development of clean energy from renewable sources like solar, wind and geothermal power.

Correcting ‘analytical gaps’

But the Searchlight Wind project has been in trouble for months.

Du’s latest order follows a February ruling in which she remanded the final environmental impact statement to BLM to correct a host of deficiencies the judge identified, particularly as they related to new information about possible impacts to golden eagles.

Du, an appointee of President Obama’s, in February also remanded a biological opinion of the project’s impacts on the threatened Mojave Desert tortoise back to FWS to make corrections.

But Du did not throw out either document, both of which were used to issue the record of decision approving the project, as well as a subsequent right-of-way grant authorizing the project to proceed to construction.

The plaintiffs filed a motion with the court for clarification on Du’s remand order, and also to ask the court for vacatur of the permits; Interior, meanwhile, filed a motion for reconsideration with the court.

The latest order, based on those two legal motions, rejects Interior’s reconsideration motion and rules that the final EIS, biological opinion, record of decision and subsequent right-of-way grant are invalid.

“The Court finds that vacatur of the ROD, the FEIS, and the [biological opinion] is necessary,” Du wrote in her order. “As enumerated in the [February] Remand Order, the Court has concluded that analytical gaps exist throughout the wildlife analyses underlying the ROD, the FEIS, and the [biological opinion].”

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.

It’s not clear whether the wind farm’s backers will want to continue to move the project forward.

Duke Energy Corp., the original project developer, sold the rights to develop Searchlight Wind to Charlottesville, Va.-based Apex Clean Energy, which has not started construction. Duke Energy had said in 2013 that it wanted to complete construction and bring the plant online by this year.

Representatives of Apex Clean Energy, which intervened in the lawsuit on behalf of the Interior Department, did not respond to requests for comment on this story in time for publication.

But Kevin Emmerich, co-founder of the Basin and Range Watch group, which is one of the plaintiffs in the lawsuit, said the project site, surrounded by the Piute-Eldorado Valley Area of Critical Environmental Concern for Mojave Desert tortoise, is no place for an industrial-scale wind farm like Searchlight Wind.

“The high desert surrounding Searchlight supports a high diversity of flora and fauna, including rich avian fauna and very old Joshua tree forests. The location’s close proximity to the Colorado River allows it to have a large number of terrestrial and avian species deserving of protection,” Emmerich said. “The Searchlight area is a very scenic region that has a great potential to expand its tourism economy. The area should be managed to maintain open space.”

Judy Bundorf, a Searchlight, Nev., resident and one of the plaintiffs in the lawsuit, echoed Emmerich.

“The project would have been visible from the proposed Castle Mountains National Monument in neighboring California and from Spirit Mountain in Nevada, a site sacred to many of the tribes in the region,” Bundorf said. “Allowing a 9,000-acre, 14-square-mile industrial wind energy project around the town would be a death knell for tourism, and for the rural lifestyle of people who call the little community home.”