United States District Court, S.D. California
ORDER ON REMEDY
JAMES LORENZ UNITED STATES DISTRICT JUDGE.
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.
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. 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.
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).
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.
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
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.
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.
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.
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.
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. 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).
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 ...