THE PROTECT OUR COMMUNITIES FOUNDATION, BACKCOUNTRY AGAINST DUMPS and DONNA TISDALE, Plaintiffs,
KEN SALAZAR, in his official capacity as Secretary of the United States Department of the Interior; ROBERT ABBEY, in his official capacity as Director of the United States Bureau of Land Management; MARGARET L. GOODRO, in her official capacity as El Centro Field Office Manager for the United States Bureau of Land Management; UNITED STATES BUREAU OF LAND MANAGEMENT, a federal agency; and UNITED STATES DEPARTMENT OF THE INTERIOR, a federal agency, Defendants, OCOTILLO EXPRESS LLC, Defendant-Intervenor Defendant.
ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING FEDERAL DEFENDANTS AND OCOTILLO'S MOTIONS FOR SUMMARY JUDGMENT [Dkt. Nos. 25, 28, 29.]
GONZALO P. CURIEL, District Judge.
Plaintiffs The Protect Our Communities Foundation; Backcountry Against Dumps; and Donna Tisdale filed a complaint challenging the United States Department of the Interior's approval of the May 11, 2012 Record of Decision ("ROD") approving the Ocotillo Wind Energy Facility Project ("OWEF" or "Project"), a utility-scale wind power project in the Sonoran Desert in Imperial County, California. The complaint alleges Defendants violated the National Environmental Policy Act ("NEPA"); the Federal Land Policy and Management Act ("FLPMA"); and the Migratory Bird Treaty Act ("MBTA") and seeks relief under the Administrative Procedures Act ("APA").
On September 11, 2012, Plaintiffs filed a complaint for declaratory and injunctive relief against Defendants United States Department of the Interior ("Interior"); United States Bureau of Land Management ("BLM"); Ken Salazar, Secretary of the Interior; Robert Abbey, Director, U.S. Bureau of Land Management; and Margaret L. Goodro, Field Manager, BLM El Centro Field Office (collectively referred to as "Federal Defendants"). (Dkt. No. 1.) On October 4, 2012, the case was transferred to the undersigned judge. (Dkt. No. 10.) On October 22, 2012, the Court granted the joint motion for permissive intervention of Defendant-Intervenor Ocotillo Express, LLC ("Ocotillo"). (Dkt. No. 13.)
On December 11, 2012, January 23, 2013, and May 20, 2013, the administrative record was lodged with the Court. (Dkt. Nos. 20, 21, 24.) On June 17, 2013, Plaintiffs filed a motion for summary judgment. (Dkt. No. 25.) On July 17, 2013, Federal Defendants and Ocotillo filed their cross motions for summary judgment. (Dkt. Nos. 28, 30.) On August 16, 2013, Plaintiffs filed their oppositions. (Dkt. Nos. 37, 38.) Federal Defendants and Ocotillo filed their replies on September 6, 2013. (Dkt. Nos. 39, 40.)
On December 19, 1980, the Department of the Interior approved a Record of Decision ("ROD") for the California Desert Conservation Area ("CDCA") which established a "long-range, comprehensive plan for the management, use, development, and protection of over 12 million acres of public land...." (OWEF 5914.) On October 9, 2009, Ocotillo applied to the Bureau of Land Management ("BLM") and to the County of Imperial to construct and operate a wind energy facility on public land within the CDCA. (OWEF 5261.) In February 2012, Interior created a Proposed Plan Amendment & Final Environmental Impact Statement/Final Environmental Impact Report ("Final EIS" or "FEIS/FEIR") for the Ocotillo Wind Energy Facility analyzing the impact of a 12, 484 acre right-of-way ("ROW") over public land in favor of Ocotillo to build 155 wind turbine generators. (OWEF 804, 825.) On May 11, 2012, Interior approved an ROD for the Ocotillo Wind Energy Facility and Amendment to the California Desert Conservation Area Plan which approves a 10, 151 acre right-of-way over public land in favor of Ocotillo to build 112 wind turbine generators. (OWEF 109.)
A. Standard of Review
The Administrative Procedures Act ("APA") governs judicial review of agency actions under FLPMA, and NEPA. See 5 U.S.C. § 706; see also Oregon Natural Res. Council Fund v. Brong , 492 F.3d 1120, 1124 (9th Cir. 2007) (FLPMA and NEPA); Audubon Soc. of Portland v. U.S. Fish and Wildlife Serv., No. 04-670-KI, 2005 WL 1713086, at *4 (D. Or. July 21, 2005) ("MBTA"). An agency's decision must be upheld under judicial review unless the court finds that the decision or action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Actions that are approved "without observance of procedure required by law" are also subject to be set aside upon judicial review. 5 U.S.C. § 706(2)(D).
"An agency decision is arbitrary and capricious if, among other things, it 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.'" Native Ecosystems Council v. Weldon , 697 F.3d 1043, 1053 (9th Cir. 2012) (citation omitted). The standard is "highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Nw. Ecosystem Alliance v. U.S. Fish and Wildlife Serv. , 475 F.3d 1136, 1140 (9th Cir. 2007) (citation omitted). Agency action is valid if the agency "considered the relevant factors and articulated a rational connection between the facts found and the choices made." Arrington v. Daniels , 516 F.3d 1106, 1112 (9th Cir. 2008) (citations omitted); see also Nat'l Wildlife Fed v. U.S. Army , 384 F.3d 1163, 1170 (9th Cir. 2004) (an agency must present a "rational connection between the facts found and the conclusions made."). The burden is on Plaintiff to show any decision or action was arbitrary and capricious. See Kleppe v. Sierra Club , 427 U.S. 390, 412 (1976).
B. National Environmental Protection Act ("NEPA")
The NEPA requires agencies considering "major Federal actions significantly affecting the quality of the human environment" to prepare and issue an environmental impact statement ("EIS"). Brong , 492 F.3d at 1132 (citing 42 U.S.C. § 4332(C)). The statement must "provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1. The Court's role is to ensure that the agency took a "hard look" at the potential environmental consequences of the proposed project. Brong , 492 F.3d at 1132 (citation omitted). "We review an EIS under a rule of reason to determine whether it contains a reasonably thorough discussion of probable environmental consequences.'" Selkirk Conserv. Alliance v. Forsgren , 336 F.3d 944, 958 (9th Cir. 2003). The court does not substitute its judgment for that of the agency. Id . The NEPA does not contain substantive environmental standards, nor does the Act mandate that agencies achieve particular substantive environmental results. Ctr. for Biological Diversity v. U.S. Forest Serv. , 349 F.3d 1157, 1166 (9th Cir. 2003).
1. Purpose and Need and Reasonable Range of Alternatives
Plaintiffs argue that the BLM's purpose and need statement is contrary to law because it adopted the applicant's goal as its own, and as a result, restricted BLM's consideration of alternatives. Federal Defendants and Ocotillo argue that BLM's purpose and need statement complies with NEPA and it considered reasonable range of alternatives.
An EIS must discuss "reasonable alternatives" to the proposed project. 42 U.S.C. § 4332(2)(C)(iii); 40 C.F.R. § 1502.14 (consideration of alternatives "is the heart of the environmental impact statement.") The "rule of reason" applies to the choice of alternatives as well as the extent to which the EIS must discuss each alternative. Citizens Against Burlington, Inc. v. Busey , 938 F.2d 190, 195 (D.C. Cir. 1991) (quoting State of Alaska v. Andrus , 580 F.2d 465, 475 (D.C. Cir. 1978)). The environmental impact statement need not consider an infinite range of alternatives, only reasonable or feasible ones. 40 C.F.R. § 1502.14(a)-(c). "The agency must look at every reasonable alternative within the range dictated by the nature and scope of the proposal." Friends of Se's Future v. Morrison , 153 F.3d 1059, 1065 (9th Cir. 1998); see also Idaho Conserv. League v. Mumma , 956 F.2d 1508, 1520 (9th Cir. 1992). The "existence of a viable but unexamined alternatives renders an environmental impact statement inadequate." Alaska Wilderness Recreation & Tourism Ass'n v. Morrison , 67 F.3d 723, 729 (9th Cir. 1995). As for alternatives which were eliminated from detailed study, the agency must briefly discuss the reason for their exclusion. 40 C.F.R. § 1502.14(a).
40 C.F.R. § 1502.13 requires that the EIS "shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." 40 C.F. R. § 1502.13. The purpose and need of a project dictates the range of "reasonable" alternatives. City of Carmel-by-the -Sea v. U.S. Dep't. of Transp. , 123 F.3d 1142, 1155 (9th Cir. 1997). While agencies are afforded discretion to define the purpose of a project, an agency cannot define its objective in reasonably narrow terms in order to avoid the requirement that relevant alternatives be considered. Friends of Se's Future , 153 F.3d at 1066. An agency's statement of purpose is reviewed under a reasonableness standard. NPCA v. BLM , 606 F.3d 1058, 1070 (9th Cir. 2010). In determining its purpose and need statement, the agency must consider the statutory context of the proposed action and the applicant's private objectives. Alaska Survival v. Surface Transp. Bd. , 705 F.3d 1073, 1085 (9th Cir. 2013); see also NPCA , 606 F.3d at 1070. Courts must consider "whether the purpose and need statement is reasonable in light of the [applicant's] goals and the statutory context." Alaska Survival , 705 F.3d at 1085.
Citing one sentence addressing the applicant's objectives out of a three paragraph purpose and need statement, Plaintiffs argue that the BLM adopted the Project applicant's statement of purpose and need and consequently constrained BLM's consideration of alternatives. (See OWEF 848.) The BLM contends that it formulated its own objectives and also considered the Applicant's goals and needs. It asserts that the objectives are reasonable because they are fully consistent with Congressional and Secretarial mandates as outlined in Executive Order 13212, Energy Policy Act of 2005, and Secretarial Order 3285A1. Moreover, it argues that the purpose and need statement is reasonable because it is consistent with the CDCA's Plan's goals and objectives which include the goal of "[i]dentify[ing] potential sites for geothermal development, wind energy parks, and powerplants." (OWED 6000.) Ocotillo contends that the purpose and need statement represents the goals of Congress, the President and the Secretary of the Interior to promote renewable energy projects on federal lands to which the Project is a partial response.
The relevant portions of the BLM's Purpose and Need provision states:
Taking into account the BLM's multiple use mandate, the purpose and need for the Proposed Action is to respond to a FLPMA ROW application submitted by the Applicant to construct, operate, maintain, and decommission a wind energy-generating facility and associated infrastructure on public lands administered by the BLM in compliance with FLPMA, BLM ROW regulations, and other applicable Federal laws and policies.
The proposed action would, if approved, assist the BLM in addressing the following management objectives:
Executive Order 13212, dated May 18, 2001, which mandates that agencies act expediently and in a manner consistent with applicable laws to increase the "production and transmission of energy in a safe and environmentally sound manner."
The Energy Policy Act 2005 (EPAct 05), which sets forth the "sense of Congress" that the Secretary of the Interior should seek to have approved non-hydropower renewable energy projects on the public lands with a generation capacity of at least 10, 000 MW by 2015.
Secretarial Order 3285A1, dated March 11, 2009, and amended on February 22, 2010, which "establishes the development of renewable energy as a priority for the Department of the Interior."
This proposed action, if approved, would also further the development of environmentally responsible renewable energy as a priority for the Department of the Interior.
Plaintiffs rely on the NPCA case where the Ninth Circuit held that the purpose and need statement was impermissibly narrow and which necessarily and unreasonably limited the range of alternatives. NPCA , 606 F.3d at 1072. In that case, the BLM did not dispute that three out of four objectives were the applicant's objectives. Id. at 1071.
Contrary to Plaintiffs' assertions, the Court finds that the BLM did not simply adopt the applicant's goals and purpose. The "BLM Purpose and Need" section specifically explains how the applicant's proposed project would assist in the BLM's objective in carrying out Executive Order 13212, Energy Policy Act of 2005 and Secretarial Order 3285A1. (OWEF 848.) In addition, the EIS includes a provision entitled "BLM Purpose and Need" and a separate provision entitled the "Applicant's Objectives." (OWEF 848-49.) Plaintiffs' argument that the purpose and need statement only adopted the applicant's goal is not valid.
Based on the purpose and need statement, the Court considers the range of alternatives analyzed in the EIR/EIS.
As to the range of alternatives, the agency shall:
(a) Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.
(b) Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits.
(c) Include reasonable alternatives not within the jurisdiction of the lead agency.
(d) Include the alternative of no action.
(e) Identify the agency's preferred alternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the final statement unless another law ...