Court order: DOE failed to consider environmental impacts on Mexico

United States District Court
Southern Distric of California

Backcountry Against Dumps et.al. v United States Department of Energy et.al

Pending before this Court are the parties' cross-motions for summary judgement. 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 GRANTS Plaintiffs' Cross Motion for Summary Judgement and DENIES Defendants' Cross Motion for Summary Judgement.

Background

On August 17, 2012, the Department of Energy ("DOE") announced its decision to issue a presidential permit to Energia Sierra Juarez U.S. Transmission, LLC ("ESJ"), a subsidiary of Sempra Energy. The permit, PP-334, allowed ESJ " to construction, operate, maintain and connect a double-circuit 230,000 volt (230 kV) electric transmission line across the U.S.-Mexico border in eastern San Diego County, California". The envisioned transmission line would run approximately 1.65 miles from the vicinity of La Rumorosa, Northern Baja California, Mexico to a spot near Jacumba, California. Roughly .65 miles of the transmission would be within the U.S. The terminus in Mexico was ESJ's planned wind turbine facility, capable of generating 1,250 megawatts (MW) of electricity. The end point in Jacumba was San Diego Gas and Electric's planned ECO Substation, which would then be connected with the 500-kV Southwest Powerlink transmission line. The intended result of the Project was to allow electricity by the ESK Wind Farm to be delivered into the U.S. power grid. Construction of the Project is now complete.

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On April 21, 2014, Plaintiffs Backcountry Against Dumps and Donna Tisdale (collectively "Plaintiffs") filed an Amended Complaint alleging several environmental claims against the United States, a number of its agents in their official capacities and ESJ. In its September 29, 2015 Order, the Court granted summary judgement to the Defendants on all but Plaintiffs' first count, alleging violations of the National Environmental Policy Act ("NEPA"). As to the NEPA claim, the Court (1) granted summary judgment to Plaintiffs on the issues of whether the Purpose and Need Statement of the Final Environmental Impact Statement issued in connection with PP-334 was overly narrow; (2) granted summary judgement to Defendants on the issue of whether the FEIS was adequate as to the ESJ Wind Farm's environmental impacts upon Mexico; (3) granted summary judgement to Defendants on the issue of whether the FEIS was adequate as to environmental impacts within the United States and (4) denied both parties' cross motions for summary judgement on the issue of whether the FEIS was adequate as to the environmental impacts of the transmission lines upon Mexico. The Court subsequently denied both parties' motions for reconsideration / clarification but granted the parties leave to file a second round of cross motions for summary judgement on the issue of the sufficiency of the FEIS as to environmental impacts upon Mexico.

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Discussion

Defendants contend that the issuance of PP-334 did not trigger a duty under NEPA to consider impacts in Mexico stemming from portions of the Project located on Mexican soil. Rather, Defendants argue that (1) the only action authorized by PP-334 was the construction and operation of the Project that stands on U.S. soil: the .65 mile stretch of power line running from the U.S. / Mexico border to the ECO Substation in Jacumba; (2) The remaining one mile of the power line running between the border and the ESJ Wind Farm was permitted and is regulated by the government of Mexico; and (3) the U.S. lacks jurisdiction to regulate any of the Projects' structures that stand on Mexican soil. These premises are entirely true, but they do not compel the conclusion Defendants urge.

Under NEPA, DOE had a duty to prepare an environmental impact statement ("EIS") stemming from the action authorized by PP-334. The action authorized by PP-334 was the construction of the U.S. portion of the Line and the connection of it to the Mexican portion of the Line. NEPA required the DOE consider both the direct and indirect effects of this action. An environmental impact is an "indirect effect" of an action if it is reasonably foreseeable that the action would cause the impact. A mere "but for" causal relationship between the action and the impact does not suffice. Rather, the connection must be something more akin to the concept of proximate causation or "two links of a single chain."

Here, there is a very strong causal link between PP-334 and the Mexican portion of the Line. The U.S. portion of the Line and the Mexican portion of the Line are literally "two links of a single chain" connecting the Substation to the ESJ Wind Farm. There simply can be no dispute that it was "reasonably foreseeable" that the approval of PP-334 would trigger the construction and operation of the Mexican portion of the line and all environmental impacts stemming therefrom. In this vein, Border Power Plant Working Group v. Dept. of Energy, is on all fours.

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Conclusion and Order

For the foregoing reasons, the Court reconsiders its previous order, GRANTS plaintiffs Cross Motion for Summary Judgement and DENIES Defendant’s Cross Motion for Summary Judgement as follows:

• Defendant had a duty to consider the environmental impacts upon Mexico stemming from all portions (the U.S. Line, the Mexico Line, and the ESJ Wind Farm) of the Project.
• By not considering such impacts in the FEIS, Defendants violated NEPA.
• This order does not decide the issue of remedy. The parties are instructed to contact the undersigned’s law clerk no later than February 10, 2017 to discuss a briefing schedule on the issue of remedy.