STATEMENT OF JURISDICTION
The Court has original jurisdiction over this petition under 16 U.S.C. § 839f(e)(5). Petitioners Friends of the Columbia Gorge and Save Our Scenic Area (collectively “Friends”) seek review of the Bonneville Power Administration’s (“BPA”) June 24, 2015 Record of Decision (“ROD”) approving the interconnection of the Whistling Ridge Energy Project (the “Project”) with the BPA’s electricity transmission system, based on BPA’s analysis under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–47. Excerpts of Record (“ER”) 1–40 (ROD); 191–355 (excerpts of Final Environmental Impact Statement (“FEIS”)). Friends further seeks review of BPA’s June 15, 2015 Supplement Analysis for the Whistling Ridge Energy Project Final Environmental Impact Statement in which BPA determined not to prepare additional NEPA documentation. ER 41–55. Friends timely filed the petition on September 9, 2015, within 90 days of the challenged decisions. 16 U.S.C. § 839f(e)(5).
Friends of the Columbia Gorge is a nonprofit public interest organization dedicated to protecting and enhancing the resources of the Columbia River Gorge National Scenic Area and its environs. ER 619. Save Our Scenic Area is a grassroots community organization incorporated in 2007 in response to the proposed Project. ER 617, 648. The Declarations of Thomas J. Drach, Ralph Thomas Rogers, and Jozsef Urmos, filed concurrently with this brief, demonstrate that Petitioners have standing. See Nw. Envtl. Def. Ctr. v. BPA, 117 F.3d 1520, 1527–30 (9th Cir. 1997) (petitioners may submit declarations with briefing to demonstrate standing). Both Petitioners also commented extensively over the past six years regarding BPA’s interconnection decision and the Project’s impacts. See ER 56–77 (excerpts of Index to Administrative Record).
ISSUES PRESENTED FOR REVIEW
1. Whether BPA violated NEPA by approving the ROD based on an FEIS that analyzed only the proposed action—which did not specify the actual number, output capacities, or locations of wind turbines within the Project site—and the no-action alternative.
2. Whether BPA violated NEPA by approving the ROD based on an FEIS that did not analyze the effectiveness of proposed mitigation.
3. Whether BPA violated NEPA by approving the ROD based on an FEIS that did not take a hard look at the Project’s harmful effects on birds and bats.
4. Whether BPA violated NEPA when it decided not to prepare a Supplemental Environmental Impact Statement (“SEIS”) despite substantial changes to the Project and a need to update stale wildlife survey data.
STATEMENT OF THE CASE
The Columbia River Gorge, located on the border of Oregon and Washington, is home to spectacular landscapes, sheer cliffs, mountains that rise nearly a mile into the air, and rare plants and wildlife. The rare beauty of the Gorge draws two million visitors each year to enjoy its spectacular scenery. In 1986, Congress enacted the Columbia River Gorge National Scenic Area Act. 16 U.S.C. §§ 544–544p. The Act created the Columbia River Gorge National Scenic Area to protect and enhance the scenic, natural, cultural, and recreational resources of the Columbia River Gorge and to allow carefully restricted economic development consistent with resource protection within the Scenic Area’s boundaries.
In 2003, the Whistling Ridge Energy Project was proposed to be built immediately adjacent to the Scenic Area’s northern boundary, directly across the Columbia River from the City of Hood River, Oregon. The Project’s wind turbines would tower over the Gorge’s northern escarpment, visible for miles in each direction along the Columbia River. The Project is proposed as an indeterminate combination of up to 50 wind turbines, each varying from 1.2 to 2.5 megawatts (“MW”) in generating capacity, for a total of 70 to 75 MW of capacity, with the turbines to be sited in an as-yet-undefined configuration within eight potential corridors on private forest lands adjacent to the Scenic Area.
In 2009, Whistling Ridge Energy, LLC (the “Applicant”), filed an application with the State of Washington’s Energy Facility Site Evaluation Council (“EFSEC”) requesting a Site Certification Agreement (“SCA”) from EFSEC and the Governor of Washington under state facility siting law. Because the Project would be worthless unless it could transmit its power, the Applicant also applied to BPA, which operates the largest energy transmission grid in the Pacific Northwest, for an agreement allowing the Project to interconnect to that grid. BPA had to decide whether to grant the interconnection based on an analysis under NEPA of the harm the Project might cause to the environment.
The record confirms that the Applicant never attempted to determine the exact number, capacities, or configurations of the wind turbines to meet the Project’s 70- to 75-MW capacity goal. Rather, the Applicant sought approval of the project’s general contours first, with details to follow later. EFSEC and the Governor determined that state law allowed approval of such an indeterminate project subject to numerous conditions, including 26 mitigation plans to be developed later—but also cut 15 turbines from Applicant’s proposal, eliminating three potential turbine corridors and authorizing no more than 35 turbines.
But NEPA requires a much different analysis. NEPA’s goals of public disclosure and informed, democratic decisionmaking require federal agencies to prepare detailed evaluations of all reasonable alternatives to sharply define issues and allow the public, as well as decisionmakers, to compare the different environmental effects of the distinct alternatives to the proposed action. Agencies must also evaluate whether proposed mitigation to reduce the action’s harmful effects actually will be effective in doing so. And NEPA requires agencies to gather and disclose relevant data and take a “hard look” at a project’s potential harm, and to supplement an FEIS when there are significant changes to the project or significant new information about environmental concerns.
The BPA’s FEIS for the Project satisfies none of these requirements. Rather than develop and study alternatives that would allow the comparisons NEPA requires, the agency accepted the developer’s proposal—with its range of up to 50 turbines, each with a 1.2- to 2.5-MW capacity, to be sited at yet-to-be-determined locations in a yet-to-be determined configuration—as the only action alternative. Because of the indeterminate nature of the proposed action, BPA and the Applicant evaluated the Project under a “worst-case scenario,” depriving the public and decisionmakers of the rigorous alternatives analysis meant to be the heart of NEPA review.
The FEIS lists a series of mitigation measures, most with the qualification that they will be undertaken “to the extent feasible” or, like the 26 mitigation plans required by EFSEC, to be developed at some unspecified time in the future. The FEIS also omits basic information about birds and bats, including data regarding local avian population abundance and any evaluation of potential harm to bats from barotrauma, the leading cause of bat mortality at industrial-scale wind projects.
Although NEPA mandates no substantive outcome, its detailed procedures are meant to foster excellent decisions and informed public participation to minimize or eliminate harm to the environment. BPA’s failure to comply with fundamental tenets of NEPA precluded an informed decision, and its ultimate decision to approve the interconnection of the Project to its transmission grid was arbitrary, capricious, and not in accordance with NEPA.