As a panel of the Ninth Circuit Court of Appeals recently observed, “[r]enewable energy projects, although critical to the effort to combat climate change, can have significant adverse environmental impacts, just as other large-scale developments do. Consistent with that observation, recent court decisions underscore a willingness on the part of the judicial branch to actively scrutinize the agency decision-making process authorizing renewable energy projects on or across federally-administered lands.
This article examines four recent Federal court decisions involving renewable energy projects. Three opinions fault the relevant agency for having insufficient baseline data, especially for analyzing the impacts of those projects to wildlife. Examining these three cases in conjunction with a fourth decision affirming the agency’s decision, provides useful guidance for wind and other renewable energy developers to avoid similar pitfalls in the future. Based on these recent decisions developers should ensure that they: (1) obtain adequate survey data, especially where sensitive species or sensitive areas are present; (2) avoid using mitigation measures to mask inadequate baseline data; and (3) carefully and consistently manage the administrative record in preparation for possible legal challenges to a project.
The Four Cases
1. Searchlight Wind Project (Nevada)
In March 2013, the Bureau of Land Management (“BLM”) authorized two right-of-ways (“ROW”) for the Searchlight Wind Energy Project (“Searchlight”) located 60 miles southeast of Las Vegas and 1.5 miles east of the Lake Mead National Recreation Area. Once completed, Searchlight would be Nevada’s largest wind project with some 87 proposed turbines capable of providing up to 200 megawatts (“MW”) of electricity. The environmental impact statement (“EIS”) for the project recognized that the desert tortoise, which are listed as threatened under the Endangered Species Act (“ESA”), golden eagles, and other wildlife would be impacted by Searchlight.
The plaintiffs challenged BLM’s decision alleging that BLM violated the National Environmental Policy Act (“NEPA”), the Bald and Golden Eagle Protection Act (“BGEPA”) and the Migratory Bird Treaty Act (“MBTA”). In February 2015, the district court held that “analytical gaps” existed throughout the wildlife analyses, and accordingly, remanded the decision back to BLM to provide further explanation. Further, the court determined that a supplemental EIS was warranted because plaintiffs’ extra-record evidence offered significant new information about the potential impacts on golden eagles. Initially, the court did not vacate or throw out the underlying decision, but on reconsideration, Judge Du vacated the government’s decision.
2. Cape Wind Offshore Project (Nantucket Sound)
The Cape Wind offshore wind energy project in Nantucket Sound is the first project of its kind in the United States. In 2001, Cape Wind first sought government approval from the U.S. Army Corps of Engineers proposing 130 offshore turbines with a potential electric output of approximately 454 MW. The Bureau of Ocean Energy Management (“BOEM”) issued a ROD for the project in April 2010.
The plaintiffs challenged the decision alleging the Federal government violated half a dozen federal statutes, including whether BOEM violated NEPA and the U.S. Fish and Wildlife Service (“FWS”) violated the ESA. On March 14, 2014, the district court rejected most of these claims and granted partial summary judgment to the Federal Defendants. On appeal, a panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed with the plaintiffs and held that BOEM violated NEPA when it issued the lease with inadequate survey data about seafloor and subsurface hazards. Without those surveys, BOEM could not ensure the seafloor could safely support wind turbines. Accordingly, the D.C. Circuit panel vacated the EIS (but not the lease) and required BOEM to supplement it with adequate geological surveys before construction can commence. Moreover, the court held that FWS violated the ESA and vacated its incidental take statement for failing to consider plaintiffs’ comments when deciding whether to impose certain mitigation measures on the project to minimize the harm to two species of birds.
3. Tule Wind Project (San Diego)
The Tule project proposed to construct and operate a wind energy facility on 12,360 acres of land, 70 miles east of San Diego consisting of 95 turbines providing up to 186 MW of electricity. In December 2011, BLM issued a ROD granting the ROW for a thirty-year term with an option to renew. The ROD further provided that the grant of the ROW was expressly conditioned on the “implementation of mitigation measures and monitoring programs.”
The plaintiffs challenged BLM’s decision alleging that the agency violated NEPA, MBTA, and the BGEPA. As to NEPA, the Ninth Circuit rejected the plaintiffs’ contentions holding that “the mitigation measures provided ample detail and adequate baseline data for the agency to evaluate the overall environmental impact,” or in other words, the agency took the requisite “hard look” under NEPA.
4. Echanis Wind Project (Oregon)
The Echanis Wind Energy Project is a planned 104-MW facility to be constructed on a 10,500 acre privately-owned tract on Steens Mountain in Oregon. The Echanis project proposed building between 40 and 69 wind turbines, which would require the construction, operation and maintenance of a new 230-kV transmission line across BLM-administered land to transport the energy from the turbines to electrical grid.
Like most projects in the West, this project had to navigate the “checkerboard nature” of landownership. The project is sited on or across Federal and private land with the accompanying and sometimes inconsistent regulations. The ROW for this particular project required a 46-mile transmission line crossing about 12-miles of public lands administered by BLM. Since the construction of the turbines is a “connected action,” the entire project is subject to NEPA. Of particular importance, part of the transmission line would cut across the Steens Mountain Cooperative Management and Protection Area that represents a stronghold area for the greater sage-grouse.
In April 2012, the plaintiffs challenged BLM’s NEPA analysis with a particular focus on the impacts to the greater sage-grouse. Nearly five years after BLM’s approval of the project, the Ninth Circuit panel overturned the district court’s decision and concluded that BLM violated NEPA by failing to properly define the environmental baseline for sage-grouse.
Importance of Data Quality
In all four cases, the plaintiffs challenged the adequacy of the Federal agency’s compliance with NEPA. The statute does not impose any substantive requirements on an agency, rather, it is procedural in nature. NEPA requires Federal agencies to evaluate the potential impact of a project on the environment. If the agency can make a “Finding of No Significant Impact” it need go no further, but if the project would have significant impacts, the agency must describe the proposed project and its impacts, alternatives to the projects, and possible mitigation for any impacts in an EIS. Specifically, agencies must take a “hard look” at the environmental consequences of their actions in the EIS, and “provide for broad dissemination of relevant environmental information.”
The three courts that criticized the agency’s NEPA analysis focused on the lack of actual survey data. For example, in ONDA the Ninth Circuit panel pointed out that despite theFinal EIS acknowledging the “potential conflict between wind energy development and greater sage-grouse winter foraging habitat,” there were no actual surveys conducted to determine if sage-grouse are present at the site during the winter months of November through April. Instead, the BLM extrapolated survey data from nearby sites, and reasoned, that since no sage-grouse use these lower elevation areas, the Echanis site could not reasonably be considered wintering habitat for the species. The court disagreed with BLM and explained that the establishment of an environmental “baseline is not an independent legal requirement, but rather, a practical requirement in the environmental analysis,” and accordingly, BLM had a duty to assess, in some reasonable way, the actual baseline conditions at the Echanis site.
Similarly, the court in Bundorf would not accept BLM’s environmental analysis because “[i]n assessing the Project’s risks to golden eagles, the FEIS relies on data from Idaho habitats, noting that such data were not available for Mojave Desert habitats.” Along with the court’s concern in the Hopper case about inadequate seafloor data, these cases underscore the importance of actual survey data to support the NEPA analysis.
By contrast, the Ninth Circuit panel in Protect Our Communities rejected the plaintiffs’ NEPA arguments as mere “fly speck[ing],” rather than identifying any consequential flaws with baseline analysis. As one example, the plaintiffs claimed the agency failed to conduct nighttime migratory-bird surveys in the project area to better understand avian mortalities. The court disagreed with plaintiffs’ contention and concluded that such a survey was a “discretionary judgment” on the part of the agency, and that BLM’s determination was based on “reasonable inferences from the scientific data” based on extensive survey data.”
Role of Mitigation
Closely related to the NEPA baseline information challenges, the plaintiffs in ONDA and Protect Our Communities challenged the agency’s analysis of, and reliance on, mitigation measures. NEPA provides for the consideration of appropriate mitigation measures that would reduce the environmental impact of the proposed action.
In ONDA, BLM argued thatmitigation measures adopted in the FEIS cured any potential prejudice resulting from a faulty baseline analysis. The Ninth Circuit panel disagreed explaining that mitigation measures, while relevant to the adequacy of an environmental analysis, are “not a panacea for inadequate data collection and analysis.” Specifically, the circuit panel determined that since the baseline conditions were inadequately established, BLM did not know what impacts to mitigate, or whether the mitigation proposed would be adequate to offset damage to wintering sage-grouse. Accordingly, the Court reasoned, this lack of information stifled public input frustrating one of the key purposes of NEPA.
But in Protect Our Communities, the Ninth Circuit panel seems to blur that line. As mentioned above, the plaintiffs criticized the agency’s lack of night-time bird studies. And along with the “discretionary judgment” rationale, and related to mitigation, the court cited to a “dozen noise-mitigating measures” that would reduce the impacts of noise on birds to “low” or minimal levels. According to the court, because those impacts were reduced, the agency could provide less analysis of noise effects in the EIS compared to more significant or unmitigatable environmental impacts. One potential explanation for the seeming inconsistency between the panels was BLM’s ability in Protect Our Communities to reasonably predict outcomes related to implementing the mitigation measures. Alternatively, the more rigid approach to mitigation reliance in ONDA could also be attributed to the overlay of the specific conservation objectives for the Steens Mountain Conservation Area and the recent heightened attention on sage-grouse conservation. In any event, Wind developers should be aware of how the NEPA analysis portrays and utilizes mitigation measures to reduce impacts to wildlife and other resources.
Agency Administrative Records
These cases not only emphasize the importance of survey data, but also illustrate a willingness by Federal courts to look beyond the actual decision documents (e.g., ROD) and examine the full scope of the administrative record (“AR”) in at least three crucial respects. First, the Hopper case demonstrates that the critical emails of a BOEM geologist can cast doubt over an agency’s NEPA analysis. The BOEM geologist advised his project manager that “[t]here is no indication that [Cape Wind] ha[s] adequate data to address” various geological hazards, and that Cape Wind’s surveys “don’t seem to conform (even loosely)” with the relevant guidance. While the defendants attributed this correspondence to “a robust internal debate,” the court was not persuaded and determined that there was a legitimate question as to whether BOEM took a “hard look” at the subsurface environment.
Second, and perhaps even more compelling, is the court’s willingness in Bundorf to permit the use of plaintiffs’ extra-record evidence to require supplementation of the EIS. Generally, exceptions to get outside the AR are to be “narrowly construed” and may not be used “as a new rationalization either for sustaining or attacking [a]n agency’s decision.” But where a plaintiff can demonstrate that there is a need to “plug holes in the administrative record,” as was the case with the EIS’s analysis regarding desert tortoises and golden eagles in Bundorf, a court may consider the use of this extra-record information to scrutinize the agency’s compliance with NEPA.
Third, the Hopper case emphasizes the need to recognize when a court or agency has re-opened the administrative record for review and comment. In Hopper the district court held that FWS had improperly relied on the views of BOEM and Cape Wind in rejecting the use of “feathering,” or turning the turbines off at certain times, to reduce bird mortality. On remand, FWS considered the views of its in-house economist, but ignored information submitted by the plaintiffs, with the agency claiming the court had not ordered a re-opening of the AR. The D.C. Circuit panel disagreed with FWS holding that the agency’s decision to affirmatively seek new information to support its decision constituted a re-opening of the AR, and as such, FWS should have considered the plaintiffs’ information.
It is clear that renewable energy projects sited on or across Federally-administered lands will be carefully reviewed by Federal courts. From these cases, at least three key considerations emerge, including:
- Courts are generally unwilling to credit environmental analyses without actual survey data, especially where sensitive species or sensitive areas are present;
- The use of mitigation measures to mask an apparent lack of baseline data does not appear to be a defensible position; and
- Careful and consistent managing of the administrative record is key to surviving a legal challenge to a project.
While these considerations are not necessarily foreign to project developers, these court decisions reinforce their overall importance for Wind and renewable energy project siting.
For more information, contact Tom Perry in the Boise office, or members of our Permitting and Environmental Review or Alternative Energy practice groups.
 Oregon Natural Desert Ass’n v. Jewell (“ONDA”), No. 13-36078, at 3 (9th Cir. May 26, 2016).
 Bundorf v. Jewell, 142 F. Supp. 3d 1138, 1142 (2015).
 Id. at 1150.
 Id. at 1147. Generally, judicial review of these permitting decisions under the Administrative Procedure Act is confined to the AR generated by the relevant agencies. Here, Judge Du allowed the extra-record expert declarations based on the exception that “if the admission is necessary to determine whether the agency has considered all relevant factors and has explained its decision.” See Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005).
 Order, Bundorf v. Jewell, 13-cv-616-MMD (Oct. 30, 2015).
 Public Employees for Envt’l Res. v. Beaudreu, No. 10-1067 (D.D.C. Mar. 14, 2014).
 Public Employees for Envt’l Res. v. Hopper, No. 14-55666, at 3 (D.C. Cir. June 7, 2016). At that time the Corps of Engineers regulated outer continental shelf wind energy projects. With the passage of the Energy Policy Act of 2005, that primary authority was transferred to the Bureau of Ocean Energy Management.
 Id. at 21.
 Plaintiffs also alleged that BOEM violated the MBTA by not requiring Cape Wind to obtain a MBTA permit before harming the species. The D.C. Circuit panel explained that it was unnecessary to address this issue as Cape Wind advised the court it intends to obtain a permit before beginning construction, and that failure to do so, would violate the terms of the lease. Hopper at 18 n.11.
 Id. at 5.
 Id. at 10.
 As part of the BiOp process, FWS recommends “reasonable and prudent” measures to minimize any harm, and must include its recommendations in an “incidental take statement.” 16 U.S.C. § 1536(a)(2).
 Hopper at 22.
 Protect Our Communities Foundation v. Jewell (“POM”), No. 14-55666, at 7 (9th Cir. June 7, 2016).
 Id. at 8.
 POM at 3.
 Id. at 4. Not as relevant to this writing, but significant for renewable energy development, the Ninth Circuit panel concluded that BLM did not violate the MBTA because “the Act did not contemplate attenuated secondary liability on agencies like the BLM that act in a purely regulatory capacity.”
 ONDA at 4.
 Id. at 6. In 2000, Congress enacted the Steens Mountain Cooperative Management and Protection Act with a purpose to “conserve, protect, and manage the long-term ecological integrity of Steens Mountain for future and present generations.”
 Id. at 6.
 40 CFR § 1500.1(a).
 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).
 ONDA at 9.
 ONDA at 14.
 Bundorf at 1150.
 POM at 19.
 Id.at 20.
 42 U.S.C. § 4332(2)(c)(ii).
 ONDA at 17.
 POM at 20.
 Hopper at 7.
 Id. at 8.
 Bundorf at 1144 (citing Ass’n of Pac. Fisheries v. EPA, 615 F.2d 794, 811-12 (9th Cir. 1980).
 Id. at 19-20.