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Backcountry Against Dumps v. Perry

United States District Court, S.D. California

August 29, 2017

JAMES RICHARD PERRY, in his official capacity as Secretary of the United States Department of Energy, et al., Defendants.



         Pending before the Court is Plaintiffs' motion [Doc. 116] for vacatur or a preliminary injunction as a remedy for Defendant United States Department of Energy's violation of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. The Court decides the matter on the papers submitted and without oral argument. See Civ. L. R. 7.1(d.1). For the reasons stated below the Court DENIES Plaintiffs' requested relief and REMANDS this dispute to the United States Department of Energy.

         I. Background

         This dispute arises out of the construction and operation of a commercial wind farm (“Wind Farm”) in La Rumorosa, a town in Northern Baja California, Mexico, and a transmission line that straddles the international border to connect the Wind Farm to an electrical substation in Jacumba, California.[1] The transmission line runs approximately 1.65 miles in total. Roughly .65 miles of the transmission line stands on U.S. soil (the “U.S. Line”), and roughly one mile stands on Mexican soil (the “Mexico Line”). The Wind Farm is a nine figure investment capable of generating enough clean, renewable energy to power 65, 000 average households.

         Plaintiffs are the Protect Our Communities Foundation (“POC”) and Donna Tisdale. Both Donna Tisdale and many of the individual members of POC reside in Western Imperial County and Eastern San Diego County and allege that the construction and operation of the Project has harmed their enjoyment of the local environment. The owner of the Wind Farm is intervenor Defendant Energia Sierra Juarez U.S. Transmission, LLC (“ESJ”). ESJ transmits all of the power that the Wind Farm generates to the substation in Jacumba, CA. From there, San Diego Gas and Electric (“SDGE”) distributes the power into the U.S. power grid. Because the transmission line connects at the international border, ESJ had to obtain a presidential permit prior to construction or operation. E.O. 10485 (September 9, 1953), as amended by E.O. 12038 (February 7, 1978).

         Defendant United States Department of Energy (“DOE”) is the federal agency in charge of issuing such permits. The National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332, required DOE to conduct an environmental review and prepare an Environmental Impact Statement (“EIS”) before issuing the permit. DOE undertook an environmental review and published a Final Environmental Impact Statement (“FEIS) in May 2012. On August 31, 2012, DOE issued a presidential permit (“PP-334”) authorizing ESJ to connect the transmission lines across the international border. On December 26, 2012, Plaintiffs filed a complaint seeking declaratory and injunctive relief for violations of a number of environmental laws. In October 2013, about ten months after Plaintiffs filed their complaint, construction of the Wind Farm commenced. In April of 2014, construction of the U.S. Line commenced. Commercial operation commenced in April 2015. Plaintiffs never sought preliminary injunctive relief after filing their complaint.

         After two rounds of summary judgment, only Plaintiffs' NEPA claim remains. The Court has already held that the NEPA claim is meritorious. Specifically, the Court found that the FEIS prepared by DOE was inadequate, and thus violated NEPA, in two respects: (1) The FEIS purpose and need statement was overly narrow and thus foreclosed consideration of distributed power generation as an alternative to the Project and (2) the FEIS failed to consider the environmental impacts upon Mexico of the U.S. Line, the Mexico Line, and the Wind Farm.

         The issue before the Court now is the proper remedy for these NEPA violations. Both parties agree that the Court must remand this case to DOE for preparation of a Supplemental Environmental Impact Statement (“SEIS”) that satisfies NEPA. However, disagreement exists as to whether the Court should prohibit continued Project operation during the interim, remand period. Specifically, Plaintiffs seek vacatur of PP-334 and / or a permanent injunction requiring Defendants to disconnect the line at the border until DOE publishes a valid SEIS. Defendants, by contrast, urge the Court to exercise its equitable discretion and allow continued Project operation during the remand period.

         II. Vacatur

         The Administrative Procedures Act (“APA”) provides that a “reviewing court shall… hold unlawful and set aside (A) agency action, findings, and conclusions found to be . . . arbitrary capricious, an abuse of discretion, or otherwise not in accordance with law . . . [or] (D) without observance of procedure required by law. 5 U.S.C. § 706(2)(A), (D). However, the APA also provides that, in making such determinations, “due account shall be taken of the rule of prejudicial error.” 5 U.S.C. § 706. Under Plaintiff's reading of § 706, a court has no discretion but to vacate any agency action found to be unlawful. Thus, Plaintiffs argue, because the Court has already found a violation of NEPA, the Court has no discretion and must vacate PP-334.

         Plaintiffs are incorrect. It is true that vacatur is the normal remedy for unlawful agency action. Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995). That said, an order of vacatur does not mechanically follow from an APA violation. Rather, a court must consider principles of equity to determine whether the facts warrant vacatur. Id. Specifically, a court must balance the seriousness of the agencies errors against “the disruptive consequences of an interim change that may itself be changed.” Cal. Cmtys. Against Toxics v. U.S. Env't Prot. Agency, 688 F.3d 989, 992 (9th Cir. 2012) (citing Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)).

         In Cal. Cmty's Against Toxics, the Ninth Circuit expressly adopted the D.C. Circuit's metric for measuring the seriousness of an agency's error. Toxics, 688 F.3d at 989 (citing Allied-Signal, 988 F.2d at 150-51.) Under this approach, an error's seriousness is coextensive with the extent to which the error creates doubt as to whether the agency made the correct decision. Allied-Signal, 988 F.2d at 150-51. As explained above and in the Court's previous summary judgment orders, DOE made two procedural errors.

         First, DOE drafted the purpose and need statement in an overly narrow manner such that it foreclosed consideration of distributed power generation as an alternative to the Project. This procedural error, however, appears to be without substantive consequence. Distributed generation refers to generation of power closer to the point of consumption, often taking the form of rooftop solar panels or local processing of renewable energy sources. In October of 2011, the Bureau of Land Management (“BLM”) and the California Public Utilities Commission (“CPUC”) jointly prepared an environmental impact statement in connection with a proposed utility-scale wind farm on federal land about 70 miles east of San Diego.[2] The EIS rejected distributed generation as an alternative because it was infeasible from a technical and commercial perspective that distributed generation could produce a meaningfully comparable level of clean energy as a utility scale wind farm. Protect our Cmtys. Found. v. Jewell, 2014 WL 1364453 *6 (S.D. Cal. 2014).

         This conclusion that distributed power generation is not a feasible alternative to a utility scale wind farm has withstood scrutiny by both this district and the Ninth Circuit. Protect our Cmtys. Found. v. Jewell, 2014 WL 1364453 *6; 825 F.3d 571, 581 (9th Cir. 2016). On remand, DOE will be entitled to rely on this analysis. Center for Envtl. Law and Policy v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1012 (9th Cir. 2011) (finding it proper to rely on a prior review's elimination of a specific alternative where the EIS ...

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