Jump to Navigation
Jump to Content

Desert Protective Council v. U.S. Department of the Interior

ELR Citation: 45 ELR 20219
Nos. 13-55561, (9th Cir., 11/19/2015)

The Ninth Circuit affirmed a lower court decision that BLM complied with NEPA and FLPMA in allowing the construction of a utility-scale wind project in California's Sonoran Desert. BLM sufficiently evaluated and disclosed the environmental impacts of the wind energy facility project under NEPA. Environmental groups argued they were not provided with an opportunity for public comment on 34 raptor studies that were cited in the final Avian and Bat Protection Plan (ABPP) but not the draft ABPP. But a mitigation plan, such as the ABPP, does not need to be in final form to comply with NEPA's procedural requirements. In addition, BLM included a reasonably complete discussion of mitigation measures in the final EIS. And it was not arbitrary and capricious for the final EIS to require turbine curtailment for golden eagles but not other raptors because the special legal status of golden eagles justified different mitigation measures. Similarly, BLM did not act arbitrarily and capriciously in granting a right-of-way for the project. Under FLPMA, a grant of right-of-way must comply with state law. Despite the groups' arguments to the contrary, California law does not require wind energy facilities to prevent all bird and bat fatalities. BLM also complied with FLPMA's requirement that a right-of-way include terms and conditions minimizing damage to wildlife habitat and protecting the environment. And the project adopted sufficient mitigation measures designed to minimize damage to wildlife habitat. (Defense council included Nicholas C. Yost of SNR Denton in San Francisco, CA).