Law 360

By Keith Goldberg

Law360 (September 23, 2019, 7:37 PM EDT) — The Ninth Circuit on Monday upheld the Bureau of Indian Affairs‘ approval of the second phase of a California wind farm, saying the agency properly considered the project’s potential to harm eagles before greenlighting a lease between the project developer and a California tribe.

The appeals court, which had previously backed the BIA’s approval of the now-completed first phase of Avangrid Renewables LLC’s Tule Wind project, rejected a conservation group’s argument that the agency improperly relied on an environmental impact statement for both phases that said harms to golden eagles were unavoidable. The BIA relied on that EIS to approve a lease between Avangrid and the Ewiiaapaayp Band of Kumeyaay Indians for the project’s second phase.

The Ninth Circuit also backed the BIA’s decision not to require Avangrid to get a U.S. Fish and Wildlife Service permit to kill or injure golden eagles before starting construction, even though the FWS had urged the BIA to do so.

The appeals court panel acknowledged that it’s “troubling” that the project’s completion and operation could lead to some eagle deaths. But the panel said federal environmental laws don’t provide absolute protection, whether it’s the National Environmental Policy Act not controlling the specific outcome of a project review or the Bald and Golden Eagle Protection Act not outlawing the killing of eagles.

“While we recognize the legitimate concerns about the well-being of protected eagles raised by plaintiffs and FWS, we are persuaded that those concerns can be addressed through the BGEPA permitting process,” the panel said in its opinion. “At the same time, there are benefits to the tribe and to the United States that will come from the project, and BIA has a special concern to advance the interests of the Indian nations under its jurisdiction.”

Conservation group Protect Our Communities Foundation claimed that the BIA failed to explain its decision not to implement one of the measures in the EIS to mitigate eagle impacts. But the Ninth Circuit panel agreed with the BIA that it had actually followed the command of that mitigation measure.

The panel also rejected the group’s argument that the BIA didn’t consider a project alternative that called for fewer wind turbines, as well as its contention that the agency should have crafted a supplemental EIS to look at information that came up after the original EIS was published.

As for the BIA’s decision to make Avangrid secure a BGEPA take permit from the FWS before it started operating wind turbines instead of before it erected them, the Ninth Circuit said there’s nothing unlawful about that.

While it may be practical for Avangrid to secure a take permit earlier rather than later, its compliance with the BGEPA is between the developer and the FWS, the panel said.

“Because compliance is Tule’s responsibility, BIA’s decision not to require the grant of the permit was not irrational,” the panel said.

Protect Our Communities Foundation, joined by two individual environmental advocates, sued the BIA in California federal court in 2014, alleging that the agency flouted federal environmental law when it approved a 2013 lease between Avangrid and the Ewiiaapaayp Band of Kumeyaay Indians that allowed the developer to begin the second phase of its project.

The agency both ignored concerns from the FWS and relied on the BLM’s environmental impact statement that didn’t properly consider alternatives to the project, the nonprofit alleged.

But the lower court dismissed the suit in March 2016, finding that the agency adequately complied with NEPA. The nonprofit appealed the ruling the following May. Tule Wind and the Ewiiaapaayp Band of Kumeyaay Indians intervened both at the lower court and the Ninth Circuit.

Protect Our Communities Foundation had earlier challenged the first phase of the project, also arguing there that the EIS lacked the necessary consideration of alternatives. However, in that case, the Ninth Circuit was unpersuaded and in August 2016 upheld its finding that the EIS was legally sufficient.

The first phase of the Tule Wind project went into operation last year. Avangrid spokesman Paul Copleman said the second phase is still in the permitting process.

“We are pleased that the courts have repeatedly upheld our careful stewardship of the environment and habitat in San Diego’s east county,” Copleman said Monday. “We’ve been operating Tule 1 for nearly two years now and look forward to the project’s next phase.”

Protect Our Communities Foundation staff counsel Jamie Pang said it’s disappointing that the Ninth Circuit didn’t agree with the group that golden eagles needed greater protections from the Tule project.

“It is deeply troubling that if and when the project proceeds, these animals will more than likely be harmed or killed,” Pang told Law360 on Monday. “We truly hope that all the parties involved in the construction and operation of Tule II will undergo the formal BGEPA consulting and permitting process, and minimize the harm caused to these animals.”

Representatives for the other parties couldn’t be immediately reached for comment Monday.

U.S. Circuit Judges Ronald M. Gould and Mary H. Murguia and U.S. District Judge Carol Bagley Amon of the Eastern District of New York, by designation, sat on the panel for the Ninth Circuit.

Protect Our Communities Foundation and the two individual environmental advocates are represented by William S. Eubanks II and William N. Lawton of Eubanks & Associates LLC.

The BIA is represented by Allen M. Brabender, Brian Collins and John H. Martin III of the U.S. Department of Justice‘s Environment and Natural Resources Division.

Tule Wind LLC is represented in-house by Jeffrey Durocher.

The tribe is represented by Bradley G. Bledsoe Downes of Bledsoe Downes PC.

The case is Protect Our Communities Foundation et al. v. Darryl LaCounte et al., case number 17-55647, in the U.S. Court of Appeals for the Ninth Circuit.

–Additional reporting by Danielle Nichole Smith and Michael Phillis. Editing by Orlando Lorenzo

https://www.law360.com/articles/1201863/9th-circ-backs-bia-green-light-of-wind-farm-construction-