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Western Watersheds Project and Center For Biological Diversity v. Bureau of Land Management

March 28, 2011



This case concerns approval of a wind energy facility in Spring Valley, Nevada. Plaintiffs are two environmental organizations -- Western Watersheds Project and Center for Biological Diversity.*fn1 Defendant is the Bureau of Land Management (BLM). Intervening defendant is Spring Valley Wind, LLC, the energy company developing the wind facility at issue.

Plaintiffs filed a motion for a temporary restraining order and/or preliminary injunction pursuant to Federal Rule of Civil Procedure 65 seeking to bar the BLM from issuing a Notice to Proceed or otherwise authorizing construction and site clearing for the Spring Valley Wind Energy Facility set to commence on March 28, 2011.

I. Factual Background*fn2

The Spring Valley Wind Energy Facility project is an industrial scale alternative energy project to be constructed in and around Spring Valley in east-central Nevada near Great Basin National Park. Approximately 430 acres is the total area estimated for use for the project (including short-term and long-term disturbance). This is approximately 5.6 percent of the total right of way. The project would advance United States' goal of providing renewable energy generation options to Nevada. It would generate enough energy to power 45,000 Nevada homes, up to $3 million in tax benefits to local school districts, and provide 225 jobs during the construction phase. The overall expected economic benefit for Nevada from the project is $45 million. Approval of the project makes it eligible for millions of dollars of federal financing under the American Recovery and Reinvestment Act, which requires that qualifying projects commence construction no later than September 30, 2011.

The project area is not untouched. The existing landscape has been modified through past and current human habitation, road development, ranching and mining activities, and transmission lines. Project construction would incorporate existing structures and include over 25 miles of new roads, between 66 and 75 lighted 400-foot tall wind turbines, two gravel pits, over nine miles of new fencing, a microwave tower, electrical lines, switchyard, and other facilities.

Project site clearing and construction is scheduled to begin the week of March 28, 2011. Erection of the wind turbines is scheduled for March 2012. The Spring Valley Wind Facility is expected to be commercially operational by June 2012.

Site clearing and construction for the project is set to begin March 28, 2011. This would impact native vegetation and wildlife, including the greater sage-grouse. There are 38 sage-grouse leks (mating grounds) in Spring Valley, three within a mile of the project site, but none in the project area. The project site itself is in low quality sagebrush habitat, the highest-quality habitat is located outside the project area, and the area already contains existing roads and transmission lines. In addition, to offset potential impacts, Spring Valley Wind committed $500,000 (eligible for federally matched funding) to enhancing sagebrush habitat in the area.

The operation of the turbines beginning in 2012 would also impact local bat populations. The public land designated for the project is near a large seasonal bat cave in the Great Basin, the Rose Guano Cave. The Rose Guano Cave is located four miles from the Spring Valley Wind project site and is a seasonal roost site to over one million Brazilian free-tailed bats*fn3 during their fall migration in August and September. The bats' migratory path takes them near the Spring Valley Wind Project site. The bats also travel up to 50 miles one-way at night to forage for insects, and may consume their body weight nightly.

Bats are vulnerable to mortality from operational wind turbines because wind turbines attract insects that the bats feed on and are perceived by the bats as potential migratory rest-stops or roosting sites. Bats are killed by contact with moving turbine blades and by "barotrauma." Barotauma is a phenomenon that occurs when air pressure changes near spinning turbine blades. The change in air pressure causes the bats lungs to suddenly expand, bursting blood vessels. Ninety percent of bat fatalities near wind turbines may be attributed to barotrauma.

II. Procedural Background

In June 2009, the federal government announced plans for the BLM to "fast track" the approval process for renewable energy projects across the United States. "The fast track process is about focusing [BLM] staff and resources on the most promising renewable energy projects." (BLM Opp'n Ex. A) The Spring Valley Wind Facility was approved for a "fast track."

In December 2009 and July 2010, the BLM issued preliminary environmental assessments (EAs) for the project. The preliminary EAs concluded that the project would pose no significant environmental impacts.

In response to these documents, the BLM received over 67 public comment letters, containing almost 1,000 comments. Plaintiffs were among those who submitted written comments and met with the BLM over their concerns with the preliminary EAs. Several agencies and organizations, including the U.S. Fish and Wildlife Service, Nevada Department of Wildlife, National Parks Service, and Southern Nevada Water Authority, were also initially concerned about the preliminary EAs.

On October 15, 2010, the BLM approved the project through a Decision Record and Finding of No Significant Impact (FONSI) and issued a Final Environmental Assessment which addressed comments and concerns. As a result, it did not complete an environmental impact statement (EIS).

The final EA tiers to the BLM's 2005 Final Programmatic EIS on Wind Energy Development on BLM Administered Lands in the Western United States (Wind PEIS), a document that evaluates the consequences of wind energy development across BLM lands, and the 2007 Ely Resource Management Plan's Final EIS. The final EA also relies on a detailed Avian and Bat Protection Plan (ABPP) to mitigate project impacts on bats and birds. The ABPP mitigation measures include: (1) creation and utilization of a Technical Advisory Committee (TAC) to monitor bat and bird mortality and ensure the implementation of mitigation measures should the mortality rates reach BLM designated thresholds; (2) a radar detection system to monitor flight and migratory habits and potentially trigger turbine breaks and feathering during periods of high flight activity; (3) wind turbine operation curtailment and shut downs; and (4) a mitigation fund. The mitigation measures do not include the recommendation of orienting wind turbines parallel to bat and bird flight patterns because doing so would render the turbines useless based on area wind flow.

On October 22, 2010, the BLM issued two rights-of-way to Spring Valley Wind, LLC. One was for the wind generation facility and substation, and the other was for a switchyard, overhead electrical lines, fiber-optic cable, microwave tower, and associated facilities.

On November 13, 2010, the environmental plaintiffs filed an administrative appeal and petition for stay to the Interior Board of Land Appeals (IBLA). On January 11, 2011, those plaintiffs filed a notice of dismissal of their appeal.*fn4

On January 25, 2011, plaintiffs filed a complaint with this court alleging the BLM violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. On February 28, 2011, plaintiffs filed a motion for temporary restraining order and/or preliminary injunction, seeking to enjoin site clearing and construction of the project. Defendants BLM and Spring Valley Wind, LLC opposed the motion on March 15, 2011 in separate responses.

III. Legal Standard for a Preliminary Injunction*fn5

Winter v. Natural Resources Defense Council Inc. set forth a four-factor test the court must apply before issuing injunctive relief. 129 S. Ct. 365, 374 (2008). Plaintiffs seeking injunctive relief must establish: (1) a likelihood of success on the merits, (2) a likelihood plaintiffs will suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities sharply favors the plaintiffs, and (4) an injunction is in the public interest. Id.

The court may also use a "sliding scale" approach. If there exist "'serious questions going to the merits ... and the balance of hardships tips sharply in the plaintiff's favor,'" then the court may issue an injunction, assuming the other Winter factors are met. Alliance for Wild Rockies v. Cottrell, 2011 WL 208360, at *7 (9th Cir. Jan. 25, 2011)(internal citations omitted).

An injunction is not a remedy that issues automatically in an environmental case. Weinberger v. Romero-Barcelo, 456 U.S. 305, 311 (1982). There is no presumption that environmental harm should outweigh other harms to the public interest. Winter, 129 S. Ct. at 382. Plaintiffs have a heavy burden in establishing the need for an injunction. Id. at 374. The court, when it issues an injunction, must craft it as narrowly as possible. Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2758 (2010).

IV. Analysis

A. Likelihood of Success on the Merits

Plaintiffs claim the BLM conducted a "fast track" approval of the Spring Valley Wind Facility so that the project could take advantage of federal financing under the American Recovery and Reinvestment Act, which required project approval by the end of 2010. It is alleged this approval process was pushed by high-level BLM officials and Spring Valley Wind, LLC proponents in violation of NEPA. Specifically, plaintiffs claim: (1) there are significant and unknown environmental impacts to the project site that warrant an EIS, not just an EA; (2) the BLM's decision provided no detailed statement of reasons establishing that the project's impacts are insignificant; (3) the BLM failed to take a "hard look" at the environmental impacts without adequate scientific data, including impacts to bats and sage-grouse, and the cumulative ...

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