Home » Case Summaries » 2016 » Protect Our Communities Foundation v. Jewell, 825 F.3d 571 (9th Cir. 2016)


Protect Our Communities Foundation v. Jewell, 825 F.3d 571 (9th Cir. 2016)



Protect Our Communities Foundation, Backcountry Against Dumps, and Donna Tisdale (collectively, Plaintiffs) sued the Bureau of Land Management (BLM), the Department of Interior, and various officials of those agencies (collectively, BLM) in the United States District Court for the Southern District of California, seeking injunctive and declaratory relief under the Administrative Procedure Act[1] (APA). Plaintiffs challenged BLM’s decision to grant Defendant-Intervenor Tule Wind, LLC, (Tule) a right-of-way on federal lands in southeast San Diego County, allowing Tule to construct and operate a wind energy project. Plaintiffs challenged the adequacy of BLM’s Environmental Impact Statement (EIS) for the project under the National Environmental Policy Act[2] (NEPA), and also claimed that the project would harm birds in violation of the Migratory Bird Treaty Act[3] (MBTA) and the Bald and Golden Eagle Protection Act[4] (Eagle Act). The district court rejected Plaintiffs’ challenges and granted BLM’s motion for summary judgment on all claims.[5] Two separate notices of appeal were filed from the district court’s judgment and were consolidated before the Ninth Circuit. The Ninth Circuit affirmed the district court’s grant of summary judgment in favor of BLM.

BLM, an agency within the Department of the Interior, is charged with the management of federally owned land.[6] Among BLM’s responsibilities is the discretion to grant rights-of-way for the use of such lands.[7] BLM granted a right-of-way to Tule to construct and operate a wind energy facility on 12,360 acres of land in the McCain Valley, seventy miles east of San Diego (the Project). After releasing a draft EIS for public comment, BLM’s final EIS and Record of Decision (ROD) granted a right-of-way for the development of a modified and expanded version of the original project. The right-of-way was expressly conditioned on the implementation of certain mitigation measures as well as “the issuance of all other necessary local, state, and Federal approvals, authorizations and permits.”[8] Included among the requisite mitigation measures were the Project Specific Avian and Bat Protection Plan (the Protection Plan). Tule developed the plan in conjunction with BLM and the United States Fish and Wildlife Service (FWS), based on scientific literature and research studies. If implemented, the Protection Plan would mitigate the impacts of the Project on bird and bat species. As part of an adaptive-management plan, the Protection Plan provided for continuous monitoring and inspection. BLM’s final EIS incorporated the Protection Plan by reference and required Tule’s adherence to the Plan’s mitigation measures.

The Ninth Circuit reviewed the grant of summary judgment de novo. Under the APA, the Court reviewed BLM’s grant to determine whether it was “arbitrary, capricious, an abuse of discretion, or otherwise no in accordance with the law.”[9]

Plaintiffs alleged that BLM failed to comply with NEPA in preparing the final EIS. First, Plaintiffs asserted that the scope of the Project’s “purpose and need” statement was too narrow under NEPA.[10] Second, Plaintiffs asserted that the EIS failed to adequately examine viable alternatives under NEPA,[11] including a distributed generation alternative involving the use of rooftop solar panels. Third, Plaintiffs asserted that the Project’s proposed mitigation strategies were too vague and speculative to satisfy the requirement to consider “appropriate mitigation”[12] under NEPA. Finally, Plaintiffs asserted that BLM failed to take a “hard look” at the environmental impact of the Project in the EIS.[13] Specifically, plaintiffs noted that the EIS omitted a comprehensive discussion of the impacts of Project-related noise on bird species, and that BLM failed to conduct a survey of nighttime migratory birds. Plaintiffs also claimed that the EIS did not fairly address the impacts of inaudible noise,[14] electromagnetic fields, and stray voltage on humans. Finally, Plaintiffs asserted that the EIS did not adequately address the consequences of the Project on greenhouse gas (GHG) emissions, and failed to take into account the emissions generated by the manufacture and transportation of equipment to the Project area.

The Ninth Circuit held first that the district court properly determined that the EIS’s “purpose and need statement” was adequately broad. Courts afford agencies “considerable discretion to define a project’s purpose and need” and review it for reasonableness.[15] The Ninth Circuit found that BLM’s statement was fully consistent with the agency’s duty to consider federal policies and that it constituted a reasonable formulation of Project goals. A statement “will fail if it unreasonably narrows the agency’s consideration of alternatives so that the outcome is preordained.”[16] Here, the court found that BLM’s “purpose and need” statement adequately permitted the agency to consider a range of alternatives to the Project proposal.

The Ninth Circuit next held that BLM properly acted within its discretion in dismissing alternative proposals. The court found that because BLM evaluated all reasonable and feasible alternatives in light of the ultimate purposes of the Project, the range of alternatives considered was not impermissibly narrow. The court looked to Council on Environmental Quality regulations in determining that the EIS need only “briefly discuss” the reasons for eliminating an alternative not selected for detailed examination.[17] In dismissing the distributed generation alternative, BLM reasoned that the private installation and use of rooftop solar systems presented significant feasibility issues, and the effectiveness of the rooftop solar alternative was too speculative. The Ninth Circuit ultimately held that BLM did not impermissibly dismiss the distributed generation alternative.

Next, the Ninth Circuit held that the proposed mitigation measures, including the Protection Plan, provided ample detail and adequate baseline data for BLM to evaluate the overall environmental impact of the Project. The court found that BLM’s use of an adaptive management plan as one component of a comprehensive set of mitigation measures did not render the EIS inadequate. The court noted that the continuous monitoring system included within that plan might actually better complement and help refine other mitigation measures over time, and provide flexibility in responding to environmental impacts.

As to the adequacy of BLM’s “hard look” at environmental impacts, the Ninth Circuit first held that the agency’s assessment of avian impacts was sufficient and that the failure to conduct a nighttime migratory bird survey was a reasonable discretionary judgment based on available scientific data. The court found that merely because BLM could have included more detail in its discussion of noise impacts on bird species did not mean that the analysis impermissibly misconstrued the existing data or that it forced the public or policymakers to speculate concerning the relevant impacts. Finally, the court explained that when an agency determination is based on reasonable inferences from available scientific data, as it was here, a reviewing court will not “substitute its judgment for that of the agency.”[18] Because BLM’s decision not to conduct a nighttime migratory-bird survey was based on reasonable inferences from scientific data, that decision was also reasonable.

The Ninth Circuit next held that BLM did not fail to adequately address the impacts of inaudible noise on humans. Plaintiffs based their claim on a 2011 study that concluded inaudible noise might have an adverse effect on humans. BLM considered this study in conjunction with numerous others in reaching the opposite conclusion. The Ninth Circuit concluded that Plaintiffs had not presented any reason to deviate from the rule that courts defer to the agency’s discretion in regard to the “evaluation of complex scientific data within the agency’s technical expertise.”[19]

Next, the Ninth Circuit held that the EIS conformed to NEPA’s requirements in regard to Plaintiffs’ claims on the effects of electromagnetic fields and stray voltage. The court found that BLM properly canvassed the available literature on electromagnetic fields and reasonably determined that any fields created by the Project did not present public health risks. The court also found that BLM analyzed the risk of stray voltage and appropriately addressed related mitigation measures, and therefore reasonably discounted this risk in light of mitigation plans.

Finally, the Ninth Circuit held that BLM adequately addressed GHG emissions resulting from the Project. First, the court found that the potential emissions reduction projections on which BLM relied were reasonable and were not required to be supported by conclusive proof. Second, the court was not swayed by Plaintiffs’ argument that BLM failed to take into account the emissions generated by the manufacturing and transportation of equipment to the Project area, based on BLM’s reasoning that these emissions were speculative and largely outside of Tule’s control. The court ultimately found that BLM was entitled to choose among various methodologies when estimating emissions.

In Plaintiffs’ next set of claims, they asserted that Defendants were liable under the MBTA, the APA, and the Eagle Act. The MBTA and the Eagle Act both prohibit, among other things, the “take” of any bird covered under the respective statute absent a permit from FWS.[20] FWS is tasked with issuing permits and ensuring compliance with both statutes. Although the Eagle Act provides for both criminal and civil enforcement, the MBTA is a criminal statute. However, through the APA’s prohibition against unlawful agency action, plaintiffs may bring a civil suit to compel agency compliance with the MBTA.[21]

Plaintiffs first asserted that BLM, acting in its regulatory capacity, was liable under the MBTA for the unpermitted “take” of birds due to inevitable migratory bird fatalities.[22] Second, Plaintiffs asserted that BLM’s regulatory authorization was “not in accordance with law” within the meaning of the APA.[23] Finally, since the Eagle Act provides for civil enforcement, Plaintiffs argued that the same unlawful “take” of birds under that Act directly exposed Defendants to further liability.[24]

In response, the Ninth Circuit held that BLM was acting in a purely regulatory capacity, and thus was not subject to indirect liability under the MBTA for Tule’s future actions. Relying on rules promulgated by FWS,[25] the court agreed that agencies are not subject to the prohibitions of the MBTA when acting only in their regulatory capacities. The court concluded that BLM only authorized Tule to construct and operate a wind energy facility on public lands and that this regulatory act did not result in a “take” of migratory birds within the meaning of the MBTA. As a result, BLM’s action was not independently proscribed under the APA because it was too far removed from the ultimate potential legal violation.

Finally, the Ninth Circuit held that the same reasoning that defeated BLM’s liability under the MBTA applied also to Plaintiffs’ claims under the Eagle Act. Again the court relied on FWS rules in asserting that parties who obtain permits from government agencies are responsible for their own compliance with the Eagle Act. The court further explained that agencies need only obtain a permit for a “take” that results from actions undertaken by the agency itself. Ultimately, the Ninth Circuit refused to impose indirect liability on BLM under the Eagle Act for violations that might be independently committed by Tule.

In sum, the Ninth Circuit concluded that BLM was not liable under NEPA, the MBTA, the Eagle Act, or the APA for its regulatory decision to grant Tule a right-of-way to develop and operate a renewable wind energy project. The Ninth Circuit therefore affirmed the district court’s grant of summary judgment in favor of Defendants.





Footnotes    (↵ returns to text)

  1. 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2012).
  2. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  3. 16 U.S.C. §§ 703–712.
  4. Id. §§ 668–668d.
  5. Protect Our Cmtys. Found. v. Jewell, No. 13CV575 JLS (JMA), 2014 WL 1364453, at *1 (S.D. Cal. Mar. 25, 2014).
  6. Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1702(c), 1731(a) (2012).
  7. Id. § 1761(a).
  8. Protect Our Cmtys. Found. v. Jewell, 825 F.3d 571, 577 (9th Cir. 2016).
  9. APA, 5 U.S.C. § 706(2)(A) (2012).
  10. 40 C.F.R. § 1502.13 (2016).
  11. NEPA, 42 U.S.C. § 4332(2)(C)(iii) (2012).
  12. Id. § 4332(2)(C)(ii).
  13. See 40 C.F.R § 1502.2.
  14. Loren D. Knopper & Christopher A. Ollson, Health Effects and Wind Turbines: A Review of the Literature, 10 Envtl. Health 78, 84 (2011).
  15. Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, 1084 (9th Cir. 2013).
  16. Id.
  17. Environmental Impact Statement, 43 Fed. Reg. 55,994, 55,996 (Jan. 3, 1978) (to be codified at 40 C.F.R. § 1502.14(a)).
  18. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 (1983).
  19. Envtl. Def. Ctr., Inc. v. U.S. Envtl. Prot. Agency, 344 F.3d 832, 869 (9th Cir. 2003).
  20. MBTA, 16 U.S.C. § 703(a) (2012); Eagle Act, 16 U.S.C. § 668(b).
  21. See City of Sausalito v. O’Neill, 386 F.3d 1186, 1203 (9th Cir. 2004).
  22. 16 U.S.C. § 703(a).
  23. APA, 5 U.S.C. § 706(2)(A) (2012).
  24. 16 U.S.C. § 668(a)–(b).
  25. Migratory Bird Permits; Programmatic Environmental Impact Statement, 80 Fed. Reg. 30,032, 30,035 (May 26, 2015) (to be codified at 50 C.F.R. pt. 21).
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