Observing that “[r]enewable energy projects, although critical to the effort to combat climate change, can have significant adverse environmental impacts,” a Ninth Circuit panel has invalidated the environmental review of a major wind turbine project by the Bureau of Land Management. The court held that the BLM did not adequately consider the project’s impacts on the greater sage grouse because the Environmental Impact Statement failed to assess baseline sage grouse numbers during the winter months. Oregon Natural Desert Association v. Jewell, No. 13-36078 (9th Cir. May 26, 2016).

Greater Sage Grouse

The greater sage grouse is a relatively large ground-dwelling bird that relies on sagebrush for its survival year-round. As part of the proposed Echanis Wind Energy Project in southeastern Oregon, the BLM selected a transmission line that cut across, in part, the Steens Mountain Cooperative Management and Protection Area, which is located near the center of one of the last remaining strongholds of contiguous sagebrush habitat.

In particular, sage brush habitat is essential for winter survival of sage grouse. The Final EIS acknowledged the project’s potential impact during winter months, but despite the concern, no surveys were conducted to determine if sage grouse were present at the Echanis site during the winter months. Instead, the BLM relied on surveys done at nearby sites and, from those surveys, assumed that no grouse used the Echanis site during winter.

The Ninth Circuit concluded that the BLM had improperly extrapolated data from the nearby surveys rather than conducting a survey at the actual Echanis site to see if sage grouse were present there. The court acknowledged that under NEPA, the establishment of a baseline “is not an independent legal requirement,” but rather a “practical requirement.”  Nonetheless, the court cited several cases finding environmental analyses deficient for failing to establish an environmental baseline. The court also cited the BLM’s own comments on another project, in which the BLM had urged another agency to assess baseline winter sage-grouse populations.

Compounding this extrapolation flaw, the extrapolated data was itself incorrect. Contrary to what the Final EIS stated, four sage grouse in fact were found at the nearby site, and the Final EIS therefore did not comply with NEPA’s requirement to provide “[a]ccurate scientific analysis.” In the court’s view, the fact that some sage grouse were found at the nearby site in mid-winter “greatly undermines the validity of the BLM’s assumed absence of sage grouse at the Echanis site.”

The court held that the Final EIS’s inaccurate data concerning the nearby site “rendered its assumption concerning the winter presence of sage grouse at the Echanis site arbitrary and capricious.” Had the BLM assumed the presence (rather than the absence) of sage grouse at the Echanis site, the site would have been deemed Category-1 Habitat, and the Project would not have gone forward there. Thus, errors in the BLM’s analysis were not harmless, and “materially impeded informed decisionmaking and public participation.”