Circumstances make wind energy project unlikely
by Randy Parks
On Sept. 11, in U.S. District Court in Portland, Judge Michael W. Mosman, granted the Bureau of Land Management’s (BLM) motion for a summary judgment in the matter of approving the grant of a right-of-way for the North Steens Transmission Line associated with the Echanis Wind Energy Project.
Mosman found that the BLM’s decision to grant the right-of-way was not arbitrary and capricious in making his ruling. For the same reason, Mosman granted Columbia Energy Partners’ (CEP) and Harney County’s motions for summary judgment, while denying the Oregon natural Desert Association’s (ONDA) motion for summary judgment.
Mosman denied the motions to strike extra-record declarations filed by the BLM and CEP.
The plaintiffs, ONDA and the Audubon Society of Portland, alleged that defendants, the BLM and the Secretary of the Interior (collectively “BLM”) violated the National Environmental Policy Act (NEPA), when they issued a Final Environmental Impact Statement (FEIS) and Record of Decision (ROD) approving the right-of-way.
ONDA challenged the decision pursuant to the Administrative Procedure Act, while CEP and Harney County intervened in support of BLM.
Harney County Judge Steve Grasty stated that he was pleased that the county had engaged as an intervenor, and happy that BLM, CEP and the county had prevailed.
“But on the other hand,” Grasty added, “I know that circumstances will make it very difficult, if not impossible, to move forward with the project.”
Those circumstances include availability of money, a change in the demand for electricity, and the loss of tax credits.
ONDA raised seven main reasons for which the agency’s decision should be overturned:
I. BLM failed to consider the impact of the project on fragmentation and connectivity of sage grouse habitat.
II. BLM failed to follow its own policies relating to sage grouse and golden eagles.
III. The FEIS contained inadequate information about the impacts of the project on sage grouse and golden eagles.
IV. BLM failed to consider and respond to other agencies’ critical comments.
V. BLM failed to specify required mitigation measures and relied on the assumption that Harney County would require mitigation for the impacts to private land.
VI. BLM failed to analyze the effectiveness of the proposed mitigation measures.
VII. BLM failed to allow public comment on the wholesale changes it made between the Draft and Final EIS.
The following is the judge’s ruling on each of the seven issues:
On the first issue, I find that BLM adequately considered the project’s impacts on fragmentation and connectivity. The FEIS acknowledges that sage grouse would be affected by fragmentation and the importance of connectivity to the persistence of the species. It contains a reasonably thorough discussion of the scientific literature surrounding fragmentation and discloses conflicting authority. Although the FEIS does not discuss connectivity separately, its analysis of fragmentation necessarily addresses connectivity because the two concepts are inherently intertwined.
On the second issue, I find that BLM did not arbitrarily and capriciously fail to follow its own policies. A careful analysis reveals that BLM complied with all of the policies that ONDA says it violated, even those that were not applicable.
On the third issue, I find that BLM’s surveys and data were adequate. The agency obtained enough information that it could make a reasonable decision to proceed with the project, after requiring mitigation.
On the fourth issue, I find that BLM adequately considered and responded to comments from other agencies. BLM was not required to accede to all of its sister agencies’ requests. Furthermore, many of the critical comments cited by ONDA were made early in the NEPA process, and by the time the ROD was released, the sister agencies’ comments were more positive.
On the fifth issue, I find that BLM was not required to specify required mitigation measures and was entitled to rely on Harney County to impose mitigation on private land. An agency need not have a fully developed and enforceable mitigation plan in place before it can act. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 (1989). Furthermore, an agency may rely on the state or local agency that has jurisdiction over the area in question to implement appropriate mitigation. See id. Here, BLM actually conditioned issuance of a Notice to Proceed on Harney County requiring a Habitat Mitigation Plan. BLM did all it was required to do and more.
On the sixth issue, I find that BLM’s assessment of mitigation effectiveness was sufficient. The FEIS discusses the effectiveness of some mitigation measures and the effectiveness of other measures is obvious. Because it adopted what the parties agree is the best and most recent document on sage grouse mitigation—the Oregon Department of Fish and Wildlife’s Mitigation Framework—BLM was not required to discuss the effectiveness of each mitigation measure therein. Similarly, BLM alleviated the need for an in-depth discussion of eagle, bird, and bat mitigation effectiveness by adopting an adaptive management approach, which provided for an ongoing analysis of mitigation effectiveness.
On the seventh issue, I find that BLM was not required to request public comment on the FEIS, despite making many changes and additions. Additionally, ONDA was permitted by regulation to comment on the FEIS and chose not to do so.
As a result of my findings on these issues, I deny ONDA’s motion for summary judgment and grant BLM’s motion for summary judgment. CEP and Harney County filed motions for summary judgment asserting essentially the same arguments as BLM, and for the same reasons that I grant BLM’s motion, I also grant their motions. I deny the motions to strike.