In Defenders of Wildlife v. Zinke, the Ninth Circuit upheld the Biological Opinion prepared by the U.S. Fish & Wildlife Service to assess the impacts on the threatened desert tortoise from the Silver State South solar project in southern Nevada.  856 F.3d 1248 (9th Cir. 2017).  A key takeaway from the decision is the substantial deference that the courts give to the scientific judgments of the FWS, especially in the face of scientific uncertainty.

The Biological Opinion

The principal issue in the case was that the project, which required approval by the Bureau of Land Management of a right-of-way over federal land, would narrow the corridor for the movement of the desert tortoise through the Ivanpah Valley in southern Nevada, although the project and the affected corridor were located outside of the species’ designated critical habitat.  The Biological Opinion recognized that the project’s impact on the “connectivity” of the tortoise’s movement through the Valley was uncertain in light of the available data.  But it found that the corridor provided for the species’ movement was likely to be sufficiently wide and it included a monitoring program that would be used to develop conservation measures to identify and address any negative impacts if they did occur.

In accordance with the procedures for “formal consultation” under the Endangered Species Act, the Biological Opinion made a “no jeopardy” finding, which determined that the project would not jeopardize the continued existence of the tortoise.  The Biological Opinion further concluded that formal consultation was not required to assess the potential modifications to the critical habitat for the tortoise, and instead relied on the more summary process of “informal consultation” to find that the project was not likely to affect this habitat.

Based on the Biological Opinion, in 2014 the BLM approved the federal right-of-way for the project.

The Ninth Circuit’s Decision

In upholding the Biological Opinion, the Ninth Circuit first rejected the plaintiff’s claim that the FWS did not adequately specify the applicable mitigation measures to support the “no jeopardy” finding.  The court reasoned that nothing in the ESA required firm, binding mitigation to address negative effects that are uncertain to occur.  The court explained that “our precedents do not require mitigation measures to be identified or guaranteed when the mitigation measures themselves may be unnecessary.”

The court further explained that, while a Biological Opinion must use the best scientific data that is available, the court was required to defer to the FWS in the face of scientific uncertainty.  As the court cautioned, “it is not our job to task the FWS with filling the gaps in the scientific evidence” and “we must respect the agency’s judgment.”  The court quoted the district court’s finding that “the FWS cannot be expected to respond to data that is not yet available to surmise potential mitigation actions that are not needed under the agency’s current interpretation of the data.”
Continue Reading Ninth Circuit Upholds Biological Opinion for Silver State South Solar Project in Nevada

The California Supreme Court has ruled that, under the California Endangered Species Act, a plaintiff may use a delisting petition to challenge the original decision by the California Fish and Game Commission to list an endangered species—even in the absence of changes occurring after the original listing of the species.  Central Coast Forest Association v.

Newhall Ranch, a proposed mega-development in Los Angeles County, can’t seem to catch a break: besieged by setbacks since Newhall Land first filed an application to develop the land in 1994, the project has been the subject of over twenty-one public hearings and several law suits over its more than twenty year history. In Center

The Ninth Circuit Court of Appeals has held that a right-of-way for an access road over Bureau of Land Management (BLM) land to connect a wind project to a state highway did not trigger formal consultation under the Endangered Species Act because the proposed access road would not have significant impacts to the environment. Sierra Club v. Bureau of Land Management, 786 F.3d 1219 (9th Cir. 2015).

North Sky River Energy developed a wind project on 12,000 acres of private land in the Tehachapi area. North Sky applied to the BLM for a right-of-way across federal lands for an access road to connect the wind farm with a state highway. North Sky could have accessed the highway through a private road, but preferred the access road over BLM land because the private road required substantial grading and would have greater environmental impacts. If the BLM had denied North Sky’s application, North Sky could have pursued the private road option.

After reviewing North Sky’s application and evaluating the potential environmental impacts, the BLM issued an Environmental Assessment concluding that the proposed road project would not have significant environmental impacts. Therefore, the BLM concluded that it need not prepare an Environmental Impact Statement or formally consult with the Fish and Wildlife Service under the Endangered Species Act. The BLM’s determination depended in large part on its finding that the private-road option was a viable alternative to the BLM access road project and thus the wind project had independent utility from the BLM access road project. The BLM issued a permit for the BLM access road project.

Project opponents — the Sierra Club, the Center for Biological Diversity, and the Defenders of Wildlife — alleged that the BLM right-of-way violated the Endangered Species Act and the National Environmental Policy Act (NEPA). The primary basis for the project opponents’ arguments was the theory that the environmental impacts of the BLM access road project should have been considered together with those of the wind project. They argued that when the impacts of the wind project and the access road were considered together, there would be significant impacts requiring the preparation of an Environmental Impact Statement and formal consultation under the Endangered Species Act.
Continue Reading The Importance of Independence: The Ninth Circuit Provides Helpful Clarification on Connected Actions in the Energy Project Development Context