Reprinted with permission from the October 2013 Case Notes edition of the Oregon State Bar’s Environmental & Natural Resources Section.
These case summaries are prepared for the benefit for the full bar, and therefore provide more of an overview of the case and underlying laws than might otherwise be necessary for environmental law practitioners.
Oregon Natural Desert Association v. Jewell, No. 3:12-CV-00596, __ F. Supp. 2d __, 2013 WL 5101338 (D. Or. Sep. 11, 2013).
Adrienne Thompson, Judicial Clerk to the Hon. Jack L. Landau
Plaintiffs, the Oregon Natural Desert Association and the Audubon Society of Portland (collectively, “ONDA”) sued the U.S. Bureau of Land Management and Secretary of the Interior (collectively, “BLM”) alleging that BLM did not adequately comply with the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. when the agency granted a right-of-way for the North Steens 230-kv Transmission Line associated with the Echanis Wind Energy Project in eastern Oregon. ONDA argues that the agency’s Final Environmental Impact Statement (“FEIS”) and Record of Decision (“ROD”) should be overturned on account of, among other things, BLM’s failure to consider and mitigate the project’s impact on sage-grouse and golden eagle populations.
The Echanis Wind Energy Project is a 104MW wind farm being developed on the north side of Steens Mountain in southeastern Oregon. The project developer, Columbia Energy Partners, LLC, (“CEP”) signed a longer-term power purchase agreement to deliver the project’s power output to Southern California Edison customers. To bring this power to market, however, will require a 44-mile, 230-kV transmission line, 12 miles of which would run through BLM-administered land. CEP applied for this 12-mile right-of-way back in 2008, initiating a multi-year NEPA analysis that concluded with the agency’s FEIS and ROD that granted CEP’s application, and ultimately prompted ONDA to bring the present litigation in the U.S. District Court of Oregon.
NEPA is a procedural statute that requires federal agencies to prepare an Environmental Impact Statement (EIS) whenever they undertake any “major federal action significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(C). So long as an agency takes a “hard look” at the environmental effects of its actions, Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989), no particular substantive result is required by the statute.
ONDA’s concerns revolve around the important and high-quality sage-grouse and golden eagle habitats in and around Steens Mountain that could be threatened by the Echanis Project and the associated new transmission line. ONDA challenged BLM’s FEIS and ROD under the Administrative Procedure Act, 5 U.S.C. 701-708. CEP and Harney County intervened in support of BLM. All parties moved for summary judgment. In support of its motion and its overarching argument that BLM failed to comply with NEPA, ONDA claimed in particular that:
- BLM failed to consider the impact of the project on fragmentation and connectivity of sage-grouse habitat.
- BLM failed to follow its own policies relating to sage-grouse and golden eagles.
- The FEIS contained inadequate information about the impacts of the project on sage-grouse and golden eagles.
- BLM failed to consider and respond to other agencies’ critical comments.
- BLM failed to specify required mitigation measures and relied on the assumption that Harney County would require mitigation for the impacts to private land.
- BLM failed to analyze the effectiveness of the proposed mitigation measures.
- BLM failed to allow public comment on the wholesale changes it made between the Draft and Final EIS.
The court denied ONDA’s motion for summary judgment, rejecting the organization’s arguments on each of the seven issues raised in its motion. On the first issue, the court found that BLM adequately considered the project’s impacts on fragmentation and connectivity. On the second issue, the court found that BLM did not act arbitrarily and capriciously in following its own policies. On the third and fourth issues, the court found that BLM’s surveys and data were adequate, and that the agency sufficiently considered and responded to other agency comments. The court also found that BLM was not required to specify mitigation obligations for the project developer, but instead, was permitted to rely on Harney County’s imposed mitigation measures–measures that the court additionally found BLM to have sufficiently assessed. Lastly, the court found that BLM was not required to solicit public comment on its FEIS.
As a result, the court found that BLM’s decision to issue its FEIS and ROD was not arbitrary and capricious, and granted the motions for summary judgment raised by BLM, CEP, and Harney County.