United States District Court, S.D. California
WESTERN LANDS PROJECT, DESERT PROTECTIVE COUNCIL, AND WESTERN WATERSHEDS PROJECT, Plaintiff,
UNITED STATES BUREAU OF LAND MANAGEMENT and SALLY JEWELL, Secretary of the Interior, Defendant.
ORDER FINDING PLAINTIFFS HAVE STANDING; DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; AND GRANTING DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT
JEFFREY T. MILLER, District Judge.
This case requires the court to decide whether the United States Bureau of Land Management complied with the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq., when it issued a programmatic environmental impact statement for utility-scale solar energy projects. Presently before the court is a motion for summary judgment filed by Plaintiffs Western Lands Project ("WLP"), Desert Protective Council ("DPC"), and Western Watersheds Project ("WWP") (collectively, "Plaintiffs") on February 14, 2014. (Dkt. No. 13). Also before the court is a cross-motion for summary judgment filed by Defendants United States Bureau of Land Management ("BLM") and Sally Jewell, Secretary of the Interior, on March 14, 2014. (Dkt. No. 14). Plaintiffs filed their response to Defendants' cross-motion for summary judgment on March 28, 2014, (Dkt. No. 15), and Defendants filed their response to Plaintiffs' motion for summary judgment on April 11, 2014, (Dkt. No. 17). Having reviewed the parties' arguments, relevant case law, and applicable portions of the administrative record, and the parties not having requested oral argument, the court finds this matter suitable for resolution on the papers without oral argument pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, the court finds Plaintiffs have standing, denies Plaintiffs' motion for summary judgment, and grants Defendants' motion for summary judgment.
On October 12, 2012, the BLM published the Approved Resource Management Plan Amendments/Record of Decision for Solar Energy Development in Six Southwestern States ("ROD"). (ROD, Administrative Record ("AR") 35:0028219). The ROD records the decision of the BLM Director, as approved by the Secretary of the Interior, to establish a comprehensive Solar Energy Program for the development of utility-scale solar energy resources on BLM-administered public lands in six southwestern states: Arizona, California, Colorado, Nevada, New Mexico, and Utah. (Id. at 0028228). The ROD adopts the Preferred Alternative as analyzed in the Final Programmatic Environmental Impact Statement for Solar Energy Development in Six Southwestern States ("Solar PEIS"), prepared by the BLM and the U.S. Department of Energy ("DOE"). (Id. at 0028226).
Prior to adoption of the ROD, the BLM's practice was to evaluate solar energy right-of-way ("ROW") applications on a project-by-project basis. (Final PEIS Vol. 1, AR 27:0014254). Because many of BLM's existing land use plans did not specifically address solar energy development, solar energy projects that were not in conformance with the existing land use plans required individual amendments to the land use plans. (Id.) Nor did the BLM have a standard set of mitigation measures that applied consistently to all solar energy development projects. (Id.) The Solar PEIS was created to evaluate a comprehensive Solar Energy Program that would address these limitations. (Id.)
In the Purpose and Need provision of the Solar PEIS, the BLM acknowledges a "need to respond in a more efficient and effective manner to the high interest in siting utility-scale solar energy development on public lands and to ensure consistent application of measures to avoid, minimize, and mitigate the potential adverse impacts of such development." (Id.) The Solar PEIS analyzes the feasibility of the BLM "replacing certain elements of its existing solar energy policies with a comprehensive Solar Energy Program that would allow the permitting of future solar energy development projects to proceed in a more efficient, standardized, and environmentally responsible manner." (Id.) In doing so, the proposed Solar Energy Program will further the BLM's ability to meet the mandates of Executive Order 13212 and the Energy Policy Act of 2005,  as well as the requirements of Department of the Interior ("DOI") Secretarial Order 3285A1 directing DOI agencies to identify and prioritize specific locations best suited for large-scale solar energy development on public lands. (Id.)
In order to accomplish these goals, the Solar PEIS analyzed three alternatives for managing utility-scale solar energy development on BLM-administered lands in the six-state study area: (1) the Solar Energy Development Program Alternative - excludes categories of BLM lands from development entirely, identifies specific locations called Solar Energy Zones ("SEZs") that are well suited for development, and allows for the possibility of solar development in variance areas outside of the SEZs if done in accordance with the proposed variance process, (Final PEIS, AR 27:XXXXXXX-XX, XXXXXXX-XX); (2) the Solar Energy Zone Program Alternative ("SEZ Alternative") - similar to the Solar Energy Development Program Alternative, but restricts development to the areas identified as SEZs without allowing for a variance process and thus treats all BLM lands outside of the SEZs as exclusion areas, (Id. at 0014338-39, 0014483-87); and (3) the No Action Alternative - allows the BLM to continue authorizing development on any BLM-administered lands by implementing the requirements of existing solar energy policies on a project-by-project basis, (Id. at 0014215, 0014242, 0014487-90).
In the Solar PEIS, the BLM determined that the first alternative, the Solar Energy Development Program alternative, was its preferred alternative ("Preferred Alternative"). The BLM concluded that the Preferred Alternative "would make an adequate amount of suitable lands available to support the level of development projected in the [reasonably foreseeable development scenario] and would provide flexibility in siting both solar energy facilities and associated transmission infrastructure." (Final PEIS Exec. Summ., AR 26:0014155). In the ROD, the BLM also noted that both the Preferred Alternative and the SEZ Alternative would be environmentally preferable over the No Action Alternative. (ROD, AR 35:0028228).
In this action, Plaintiffs challenge the BLM's adoption of the analysis from the Solar PEIS in the ROD on the ground the Solar PEIS failed to analyze reasonable alternatives for the BLM's solar energy policy. Specifically, Plaintiffs argue the Solar PEIS should have given further consideration to two alternatives: (1) limiting utility-scale solar development to degraded public lands, and (2) smaller-scale distributed generation of solar power near urban areas. Plaintiffs contend the BLM's failure to adequately consider these options in the Solar PEIS violates the Natural Environmental Policy Act ("NEPA"), which requires federal agencies to consider reasonable alternatives when creating an environmental impact statement like the Solar PEIS. See 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.14.
In Defendants' cross-motion for summary judgment, Defendants contend that Plaintiffs lack standing to challenge the sufficiency of the Solar PEIS. Defendants also argue that the Solar PEIS sufficiently considered reasonable alternatives and therefore satisfies NEPA's requirements.
I. Summary Judgment Standard
A motion for summary judgment shall be granted where "there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Prison Legal News v. Lehman , 397 F.3d 692, 698 (9th Cir. 2005). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). There is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id . (emphasis in original). The opposing party cannot rest on the mere allegations or denials of a pleading, but must "go beyond the pleadings and by [the party's] own affidavits, or by the depositions, answers to interrogatories, and admissions on file' designate specific facts showing that there is a genuine issue for trial.'" Id . at 324 (citations omitted). The opposing party also may not rely solely on conclusory allegations unsupported by factual data. Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989).
II. Standard of Review for NEPA Claims
The parties seek summary judgment on Plaintiffs' NEPA claim. NEPA provides "our basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a) (2006). The regulations implementing NEPA have developed procedures to "insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA." Id . § 1500.1(b).
Congress passed NEPA "to protect the environment by requiring that federal agencies carefully weigh environmental considerations and consider potential alternatives to the proposed action before the government launches any major federal action." Lands Council v. Powell , 395 F.3d 1019, 1026 (9th Cir. 2005). "NEPA requires that a federal agency consider every significant aspect of the environmental impact of a proposed action... [and] inform the public that it has indeed considered environmental concerns in its decisionmaking process." Earth Island Inst. v. U.S. Forest Serv. , 351 F.3d 1291, 1300 (9th Cir. 2003) (internal quotation marks and citations omitted). Under NEPA, all federal agencies, including the Army, must prepare an environmental impact statement ("EIS") for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). That EIS "shall 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.
In general, judicial review of actions brought under NEPA is governed by the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 551-559, 701-706. The APA provides that any agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" is prohibited and shall be overturned by the court. 5 U.S.C. § 706(2)(A); California v. Norton , 311 F.3d 1162, 1170 (9th Cir. 2002). "NEPA does not mandate particular substantive results, but instead imposes only procedural requirements." Laguna Greenbelt, Inc. v. U.S. Dept. of Transp. , 42 F.3d 517, 523 (9th Cir. 1994). Under this standard, the "court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S. Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983). Nevertheless, "the agency must examine the relevant data and articulate a satisfactory explanation" for its decision and, in reviewing that explanation, the court must consider whether the decision was based on a consideration of the relevant factors and whether there was a clear error in judgment. Id . This inquiry must "be searching and careful, " but "the ultimate standard of review is a narrow one." Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 416 (1971); Natural Resources Defense Council, Inc. v. Hodel , 819 F.2d 927, 929 (9th Cir. 1987) (the court applies deferential standard of review to Environmental Impact Statements).
When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive. On the other hand, in the context of reviewing a decision not to supplement an EIS, courts should not automatically defer to the agency's express reliance on an interest in finality without carefully reviewing the record and satisfying themselves that the agency has made a reasoned decision based on its evaluation of the significance-or lack of significance-of the new information. A contrary approach would not simply render judicial review generally meaningless, but would be contrary to the demand that courts ensure that agency decisions are founded on a reasoned evaluation of the relevant factors.'
Marsh v. Or. Natural Resources Council , 490 U.S. 360, 378 (1989).
"The standard is highly deferential, presuming agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.'" Protect Our Cmtys. Found. v. Salazar, No. 12-cv-2211 GPC (PCL), 2013 WL 5947137, at *2 (S.D. Cal. Nov. 6, 2013) (quoting Nw. Ecosystem Alliance v. U.S. Fish and Wildlife Serv. , 475 F.3d 1136, 1140 (9th Cir. 2007)). Agency action is valid if the agency "considered the relevant factors and articulated a rational connection between the facts found and the choices made.'" Id . (quoting Arrington v. Daniels , 516 F.3d 1106, 1112 (9th Cir. 2008)).
In considering a NEPA challenge, the court "may not substitute its judgment for that of the agency concerning the wisdom or prudence of a proposed action." Laguna Greenbelt , 42 F.3d at 523 (quoting Or. Envtl. Council v. Kunzman , 817 F.2d 484, 492 (9th Cir. 1987)). NEPA imposes procedural requirements designed to force agencies to take a "hard look" at environmental consequences, but does not mandate any substantive outcome. Lands Council , 395 F.3d at 1026. This "hard look" requires a "full and fair discussion of significant environmental impacts" in the EIS. 40 C.F.R. § 1502.1. "An agency must also acknowledge and respond to comments by outside parties that raise significant scientific uncertainties and reasonably support that such uncertainties exist.'" Cal. ex rel. Imperial County Air Pollution Control Dist. v. U.S. Dept. of Interior, ___ F.3d ___, 2014 WL 2038234, at *3 (9th Cir. May 19, 2014) (quoting The Lands Council v. McNair , 537 F.3d 981, 1001 (9th Cir. 2008) (en banc)). Thus, in assessing challenges brought under NEPA, once a court is "satisfied that a proposing agency has taken a hard look' at a decision's environmental consequences, the review is at an end." Or. Natural Res. Council v. Lowe , 109 F.3d 521, 526 (9th Cir. 1997) (quoting Idaho Conservation League v. Mumma , 956 F.2d 1508, 1519 (9th Cir. 1992) (citations omitted)).
I. Plaintiffs' Standing to Bring this Action
As an initial matter, the court considers Defendants' argument that Plaintiffs lack standing to bring this action. Constitutional standing requires a plaintiff to demonstrate:
(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. , 528 U.S. 167, 180-81 (2000); Cal. ex rel. Imperial County Air Pollution Control Dist. v. U.S. Dept. of Interior, ___ F.3d ___, 2014 WL 2038234, at *3 (9th Cir. May 19, 2014). In addition, a plaintiff bringing suit under the APA for a violation of NEPA must show that the alleged injury falls within NEPA's "zone of interest." Western Watersheds Project v. ...