By: Michael Phillips
Law360, New York (January 29, 2018, 3:09 PM EST) — A unit of Avangrid Renewables LLC, the Ewiaapaayp band of Kuweyaay Indians and the federal government told the Ninth Circuit on Friday that a lower court was right when it tossed claims that the government didn’t follow environmental law in approving a lease for a wind farm.
The three separately filed briefs saying that the Bureau of Indian Affairs comprehensively looked at the impact of the project on golden eagles when it approved a lease for the project between Tule Wind LLC and the California tribe. Assertions by Protect Our Communities Foundation and two individuals saying that it didn’t conduct a sufficient alternatives analysis were unfounded, as were claims that it should have done a supplement environmental impact statement based on new information.
In March, a California federal judge threw out the environmentalists’ suit over the BIA’s 2013 approval of the tribe’s lease to Tule Wind for a wind farm project on the tribe’s San Diego County reservation. U.S. District Judge Janis L. Sammartino ruled that the BIA didn’t need to do a further review under the National Environmental Policy Act, despite claims that the project risked hurting protected golden eagles.
According to Tule Wind, the project properly considered the available information.
“Eagle issues were addressed extensively in the [environmental impact statement],” Tule Wind’s brief said. “Indeed, it was identified as a ‘major issue’ for evaluation. Appellants assert there were three pieces of new golden eagle information. Yet each piece was previously addressed in the [environmental impact statement], and therefore [is] not new or significant.”
The company disagreed that there was new information, including on golden eagle nesting, that required a supplemental environmental impact statement. Tule Wind said the issues were discussed in documents previously. After going through the various allegedly novel evidence, Tule Wind said, “Again, this is not new.”
Protect Our Communities Foundation said in its opening brief in November that the BIA failed to act on the “most important mitigation measure” in the environmental impact statement, which required the BIA to approve turbines only in places that posed less risk to the golden eagles. The foundation claims that the turbines on a ridgeline would endanger the eagles.
Tule Wind said the judge was right to throw out the NEPA claim against the BIA and back the approval for the lease that allows it to carry out the second phase of the wind farm project, which involves building and operating 20 industrial wind turbines on the tribe’s reservation. Tule Wind and the tribe intervened in the suit.
Tule Wind said the environmental impact statement considered a number of alternatives that gave the BIA the ability to approve “all, none or part” of the proposal. Claims by the environmental group that midrange alternative weren’t properly considered are false, the brief said — the BIA approved less than half of the 63 originally proposed.
The process actually went above and beyond, according to the company.
“The BIA took the additional step of ensuring the project sought a permit that is otherwise optional with the knowledge that the [U.S. Fish and Wildlife Service] would process the application once the [Fish and Wildlife Service] had settled on how it would regulate such applicants,” the brief said, referring to a permit under the Bald and Golden Eagle Protection Act. “It would even have been reasonable for the agency to do less. BGEPA permits are ostensibly not required.”
The federal government’s brief and the tribe’s echoed many of the points made by the company, saying that the BIA properly followed the law when it prepared a multithousand-page environmental impact statement for the project.
“Moreover, [Protect Our Communities Foundation] has forfeited its NEPA challenge to the project’s [environmental impact statement]’s alternatives analysis by failing to raise any concerns regarding the analysis during the public comment period,” the federal government’s brief said. “In any event, the project [environmental impact statement] analyzes a reasonable range of alternatives that allow BIA to authorize any number of turbines from zero up to 20.”
Protect Our Communities Foundation previously unsuccessfully challenged the BLM’s approval of the first phase of the project: 65 turbines on lands the BLM administers in the county. In that case, the group took issue with the adequacy of an environmental impact statement, but in August 2016, the Ninth Circuit determined that the environmental impact statement was legally sufficient, according to court documents. The BIA adopted that same environmental impact statement when approving the lease for the project’s second phase.
William S. Eubanks II of Meyer Glitzenstein & Eubanks LLP, an attorney for the environmental group, said he fully expected the arguments that were made in the recently filed briefs.
“It is the same legal positions they have been taking since this case was first filed a couple of years ago,” Eubanks told Law30 on Monday. “We continue to believe that their arguments fundamentally mischaracterize the applicable laws as well as the facts here. Nothing surprising, nothing unexpected.”
Art Sasse, a spokesman for Avangrid Renewables, said he hopes the Ninth Circuit affirms decisions that other courts have already made in the case.
“[Protect Our Communities Foundation] has lost three different times now on these issues in various court rooms before various judges,” Sasse told Law360 on Monday. “We are hopeful that the Ninth Circuit court’s affirmation of those previous decisions will finally convince the [Protect Our Communities Foundation] to stop trying to block the Ewiiaapaayp band of Kumeyaay Indians from utilizing their remote land to benefit from one of the few economic development opportunities that it has.”
Representatives for the federal government, the tribe and Tule Wind did not immediately respond to a request for comment on Monday.
The federal government is represented by Brain Collins, John H. Martin and Allen M. Brabender of the U.S. Department of Justice Environment and Natural Resources Division.
The tribe is represented by Bradley G. Bledsoe Downes of Bledsoe Downes PC.
Tule Wind LLC is represented in-house by Jeffrey Durocher.
Protect Our Communities Foundation, David Hogan and Nica Knite are represented by William N. Lawton, Eric R. Glitzenstein and William S. Eubanks II of Meyer Glitzenstein & Eubanks LLP.
The case is Protect Our Communities Foundation et al. v. Weldon Loudermilk et al., case number 17-55647, in the U.S. Court of Appeals for the Ninth Circuit.
–Additional reporting by Andrew Westney. Editing by Stephen Berg.