United States District Court, C.D. California
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For Western Watersheds Project, Plaintiff: Daniel P Garrett-Steinman, Jamey M B Volker, Law Offices of Stephen C Volker, Oakland, CA; Joshua A H Harris, Law Offices of Stephan C Volker, Oakland, CA; Stephan Coles Volker, Stephen C Volker Law Offices, Oakland, CA.
For Ken Salazar, in his official capacity as Secretary of the United States Department of the Interior, Bob Abbey, in his official capacity as Director of the United States Bureau of Land Management, Mike Pool, in his official capacity as Deputy Director of the United States Bureau of Land Management, United States Bureau of Land Management, a federal agency, Rowan Gould, in his official capacity as Director of the United States Fish and Wildlife Service, Ren Lohoefener, in his official capacity as Regional Director of the Pacific Southwest Region of the United States Fish and Wildlife Service, United States Fish and Wildlife Service, a federal agency, United States Department of the Interior, a federal agency, Defendants: David B Glazer, LEAD ATTORNEY, U.S. Department of Justice, Environmental Enforcement Section, San Francisco, CA; Michael R Eitel, U.S. Department of Justice, Environment and Natural Resources Dvision - Wildlife Section, Denver, CO; Michael D Thorp, United States Department of Justice, Environment and Natural Resources Division, Natural Resources Section, Washington, DC.
For BrightSource Energy Inc., Intervenor Defendant: Albert M Ferlo, PRO HAC VICE, Perkins Coie LLP, Washington, DC; David T Biderman, Nathan M Smith, Perkins Coie LLP, Los Angeles, CA.
For California Unions for Reliable Energy, Amicus: Jason W Holder, Tanya A Gulesserian, Adams Broadwell Joseph and Cardozo, South San Francisco, CA.
ORDER RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND INTERVENOR'S MOTION FOR SUMMARY JUDGMENT
DOLLY M. GEE, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on the parties' cross-motions for summary judgment. The Court held a hearing on January 27, 2012. Having duly considered the respective positions of the parties, as presented in their briefs and at oral argument, the Court now renders its decision. For the reasons set forth below, Plaintiff's motion is DENIED and Defendants' and Intervenor's motions are GRANTED.
On January 14, 2011, Plaintiff Western Watersheds Project filed a complaint against the United States Department of the Interior (" DOI" ); Ken Salazar, the DOI Secretary, in his official capacity; the United States Bureau of Land Management (" BLM" ); Bob Abbey, the BLM Director, in his official capacity; the United States Fish and Wildlife Service (" FWS" ); Rowan Gould, the FWS Director, in his official capacity; and Ren Lohoefener, the FWS Regional Director for the Pacific Southwest Region, in his official capacity (collectively, the " Government" ). On April 18, 2011, the Court granted Intervenor Defendant BrightSource Energy Inc.'s unopposed motion to intervene [Doc. # 26]. Plaintiff filed the operative first amended and supplemental complaint on July 8, 2011 [Doc. # 66]. Plaintiff seeks declaratory and injunctive relief under the Endangered Species Act (" ESA" ), 16 U.S.C. § 1531 et seq., the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § 4321 et seq., the Federal Land Policy and Management Act, 43 U.S.C. § 1701 et seq., and the
Administrative Procedures Act, 5 U.S.C. § 701 et seq .
On June 27, 2011, Plaintiff filed a motion for preliminary injunction and application for temporary restraining order (" TRO" ) seeking injunctive relief based solely on its NEPA claims [Doc. # 26]. The Court denied Plaintiff's application for TRO on June 30, 2011 [Doc. # 58] and denied Plaintiff's motion for preliminary injunction on August 10, 2011 (" PI Order" ) [Doc. # 94]. The Ninth Circuit subsequently affirmed this Court's denial of preliminary injunctive relief. W. Watersheds Project v. Salazar, 692 F.3d 921, 2012 WL 3264322, (9th Cir. 2012).
Plaintiff filed a motion for summary judgment on October 14, 2011 [Doc. # 111]. On November 4, 2011, Defendants and Intervenor filed briefs in opposition to Plaintiff's motion for summary judgment and in support of summary judgment in their favor (respectively, " Defs.' Mot." and " Intervenor's Mot." ) [Doc. ## 118, 119]. On November 29, 2011, Plaintiff filed two briefs, each addressing different substantive issues,  in opposition to Defendants' and Intervenor's cross-motions for summary judgment and in reply to their opposition to Plaintiff's motion for summary judgment (respectively, " Pl.'s NEPA Reply" and " Pl.'s FLPMA/ESA Reply" ) [Doc. ## 123, 124]. On December 16 and 20, 2011, respectively, Defendants and Intervenor filed replies to Plaintiff's opposition to their cross-motions for summary judgment (respectively, " Defs.' Reply" and " Intervenor's Reply" ) [Doc. ## 126, 127].
The undisputed facts underlying this case are set forth in detail in the Court's Order denying Plaintiff's motion for a preliminary injunction [Doc. # 94] and are not repeated here. The cross-motions for summary judgment do not raise any new controverted factual issues. The parties' dispute stems from Defendants' decision to approve Intervenor's application to construct the Ivanpah Solar Electric Generating System (" ISEGS" ). In general, Plaintiff contends that Defendants inadequately considered the project's effect on existing populations of desert tortoise and avian species.
Summary judgment should be granted " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Partial summary judgment may be sought on any claim or defense, or part thereof, and the court may grant less than all of the relief requested by the motion. See Fed.R.Civ.P. 56(a), (g). All parties agree that this matter can be resolved on the record before the Court and that summary judgment is therefore appropriate.
When considering challenges to agency action for failure to adhere to the NEPA, FLPMA, or ESA, district courts review the decision at issue under the APA. W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 481 (9th Cir.) (citing Ctr. for Biological Diversity v. U.S. Dep't of Interior, 581 F.3d 1063, 1070 (9th Cir. 2009); Or. Natural Res. Council v. Allen, 476 F.3d 1031, 1036
(9th Cir. 2007)), cert. denied, 132 S.Ct. 366, 181 L.Ed.2d 232 (2011). The APA requires that the agency action be upheld unless it is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." League of Wilderness Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1130 (9th Cir. 2010) (quoting 5 U.S.C. § 706(2)(A)).
Review under the " arbitrary and capricious" standard is narrow; courts may not substitute their judgment for that of the agency. Rather, courts " will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, 'entirely failed to consider an important aspect of the problem,' or offered an explanation 'that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) ( en banc ) (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006)), overruled on other grounds by Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The APA thus mandates a " highly deferential standard" of review,  and " [t]his deference is highest when reviewing an agency's technical analyses and judgments involving the evaluation of complex scientific data within the agency's technical expertise." Allen, 615
F.3d at 1130 (citing McNair, 537 F.3d at 993).
A. Plaintiff's NEPA Claims
NEPA imposes procedural requirements rather than substantive environmental standards or outcomes. Barnes v. U.S. Dep't of Transp., 655 F.3d 1124, 1131 (9th Cir. 2011) (citations omitted). These procedural requirements serve the statute's twin purposes: " to ensure that the agency proposing major federal action 'will have available, and will carefully consider, detailed information concerning significant environmental impacts,'" and " to guarantee that the relevant information will be made available to the larger public audience." S. Coast Air Quality Mgmt. Dist. v. FERC., 621 F.3d 1085, 1092 (9th Cir. 2010) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)) (citing 42 U.S.C. § 4332(C)).
In moving for summary judgment on its NEPA claims, Plaintiff reiterates the grounds that it previously asserted in support of a preliminary injunction and that the Court largely rejected. To avoid recapitulating the Order denying Plaintiff's motion for a preliminary injunction, the Court confines the present discussion to those aspects of the Order with which Plaintiff takes issue or to new arguments that Plaintiff raises in support of summary judgment.
1. Whether BLM Took the Requisite " Hard Look" at the Project's Impacts on Desert Tortoises
Federal agencies must take a " hard look" at the potential environmental consequences of a proposed action. Barnes, 655 F.3d at 1131 (quoting Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003)). In particular, an agency must prepare an EIS for all " major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The EIS must contain a " full and fair discussion of significant environmental impacts" as well as " reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1. In order to identify the impacts that significantly affect the environment, the agency must consider both context and intensity. In the context of a site-specific action, " significance . . . usually depend[s] upon the effects in the locale rather than in the world as a whole." Id. § 1508.27(a). Intensity " refers to the severity of impact" and considers various factors including " [t]he degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the [ESA]." Id. § 1508.27(b), (b)(9).
An EIS must contain statements on (1) " the environmental impact of the proposed action" ; (2) " any adverse environmental effects which cannot be avoided should the proposal be implemented" ; (3) " alternatives to the proposed action" ; (4) " the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity" ; and (5) " any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." McNair, 537 F.3d at 1001 (quoting 42 U.S.C. § 4332(C)). An agency satisfies the " hard look" requirement by including these statements in its EIS and providing a full and fair discussion of environmental impacts. McNair, 537 F.3d at 1001.
Courts evaluating claims that an EIS is inadequate employ a " rule of reason"
standard, which asks whether the EIS " contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences." Allen, 615 F.3d at 1130 (quoting Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir. 2003)). Although an agency must consider " all foreseeable direct and indirect impacts" of its decision and should not " improperly minimize negative side effects," Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1180 (9th Cir. 2011) (quoting N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006)), " [i]f the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs." Methow Valley, 490 U.S. at 350 (citations omitted).
a. The FEIS' Description of the Existing Tortoise Populations
As before, Plaintiff asserts that the final environmental impact statement (" FEIS" ) is inadequate to meet NEPA's " hard look" standard because it " grossly understates the tortoise population on the Project site, precluding an accurate assessment of its impacts." (Pl.'s Mot. at 8.) Plaintiff maintains that BLM was required but failed to disclose in the FEIS that hundreds of juvenile tortoises and eggs were likely to be killed during construction of the ISEGS project.  ( Id.)
The 2010 biological opinion (" 2010 BiOp" ) is blunt about the likelihood that juvenile tortoises and eggs will be destroyed by the ISEGS project:
[J]uvenile desert tortoises and eggs are difficult to detect during clearance surveys and construction monitoring; therefore, the potential exists that surveyors may miss most of them and they are likely to remain in the work areas during construction. Juvenile desert tortoises and eggs that surveyors miss during clearance surveys or project monitoring are likely to be killed during construction. Based on the estimates in the Environmental Baseline section of this biological opinion, we estimate that as many as 35 juvenile desert tortoises . . . may be killed during construction.
(2010 BiOp at 45 (emphasis added).) Nonetheless, the 2010 biological opinion concludes, based on the scientific evidence available at that time, that the desert tortoise species in the Northeastern ...