On the heels of a decision nullifying the Bureau of Land Management’s approval of a wind energy project under the National  Environmental Policy Act (reported on here),  the Ninth Circuit rejected a challenge to BLM approval of another wind turbine project, finding it consistent with NEPA, the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.  Protect Our Communities Foundation v. Jewell, No. 14-55666 (9th Cir., June 7, 2016).

Plaintiffs challenged BLM’s decision to grant a right-of-way permitting Tule Wind, LLC, to construct and operate a renewable wind energy project on federal lands in southeastern San Diego County.

Tule Wind’s original project involved the construction of 128 wind turbines and supporting infrastructure. The BLM ultimately granted a right-of-way for a more modest facility, eliminating 33 turbines. In addition, several turbines were repositioned to reduce the risk of avian collisions. The project’s required mitigation measures included an 85-page Avian and Bat Protection Plan, developed in conjunction with the BLM and the U.S. Fish and Wildlife Service.  The plan relied on scientific literature and research studies, including field surveys in the project area conducted by Tule Wind over a period of several years. Plaintiffs nonetheless argued that the project would harm birds in violation of the MBTA and Eagle Act. Plaintiffs also challenged the adequacy of the BLM’s review of the project’s environmental impacts under NEPA.

In affirming the district court rejection of the challenge, the Ninth Circuit concluded that liability under the Migratory Bird Treaty Act does not extend to an agency acting in a purely regulatory capacity. The court held that the Act “does not contemplate attenuated secondary liability on agencies like the BLM that act in a purely regulatory capacity, and whose regulatory acts do not directly or proximately cause the ‘take’ of migratory birds within the meaning of [the statute].”  In the court’s view, the BLM merely authorized Tule Wind to construct and operate the project. It therefore did not act to “take” migratory birds within the MBTA’s meaning. For similar reasons, the BLM was not liable for any Eagle Act violations independently committed by right-of-way grantees.

As an alternative argument, plaintiffs claimed the BLM’s action was “contrary to law” within the meaning of the Administrative Procedure Act, since it permitted Tule Wind to engage in otherwise lawful activities that would lead to incidental migratory bird fatalities. The court again disagreed, concluding that the BLM’s regulatory role in this case was too far removed from the ultimate legal violation and therefore could not be independently in violation of the APA.

The Ninth Circuit also rejected plaintiff’s various NEPA claims, determining that (1) the project’s purpose and need statement contained in the Environmental Impact Statement was sufficiently broad, (2) the BLM had discretion to dismiss alternatives for the project, (3) the mitigation measures were sufficiently detailed and contained adequate baseline data, and (4) the EIS took the requisite “hard look” at the project’s environmental impacts.