By James L. Arnone, Damon P. Mamalakis, and Janice M. Schneider
On June 30, 2011, District Judge Roger T. Benitez of the Southern District of California issued a decision allowing San Diego Gas and Electronic Company (SDG&E) to proceed with its construction of the Sunrise Powerlink, a 117-mile electrical transmission line that will connect the San Diego area with the vast renewable energy resources of California’s Imperial Valley. When completed, the Sunrise Powerlink is expected to enhance the reliability of southern California’s electrical system, increase transmission capacity for power generated by renewable sources, and reduce energy costs to consumers.
In 2005, SDG&E began working with state and federal regulators to vet the Sunrise Powerlink under the federal National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA). This process culminated with the approval of the Sunrise Powerlink by the California Public Utilities Commission (CPUC) in December 2008 and Bureau of Land Management (BLM) on January 20, 2009, after an extensive environmental review.
Several project opponents challenged the BLM’s Record of Decision (ROD) by filing an appeal with the Interior Board of Land Appeals (IBLA) in March 2009. However, because the IBLA denied a motion to stay, the project opponents proceeded to file an action in federal court to directly challenge the BLM’s ROD. Plaintiffs coupled their action with additional claims related to BLM’s amendments to the Resource Management Plan, as well as a Biological Opinion (BiOp) issued by the U.S. Fish and Wildlife Service (FWS) in 2009. Soon after the plaintiffs filed their federal action, the IBLA affirmed the BLM’s decision on the merits, but the plaintiffs insisted that they still had the right to challenge the BLM’s ROD rather than the IBLA’s subsequent decision.
The district court disagreed. Ruling on cross-motions for summary judgment filed by the plaintiffs, SDG&E, and the federal defendants, the court reasoned that when the IBLA affirmed the approval of Sunrise, that decision became the “final agency action,” not the BLM’s ROD. To hold otherwise would allow there to be “‘two independent, and potentially conflicting, “final” agency actions,’ which is impermissible.” Accordingly, the district court held that the plaintiffs’ direct challenge to the BLM’s ROD failed as a matter of law.
The court similarly found that the plaintiffs’ challenge to the BLM’s RMP was not directed at a “site-specific action,” and thus was not amenable to judicial review. The court explained, “As further review and permits are required for any action, the RMP does not mark the consummation of the agency’s decision-making process, nor does it determine the rights or obligations of any party. Accordingly, the Court finds that the RMP is not a final agency action and, thus, Plaintiffs’ claims based thereon fail as a matter of law.”
Finally, the court rejected the majority of the plaintiffs’ claims respecting the FWS’s 2009 BiOp as moot in light of a superseding BiOp issued in 2010. The only claim against the FWS that survived the 2010 BiOp was whether the FWS was obligated to consider various projects that the plaintiffs contended were “connected” to the Sunrise Powerlink under NEPA. Assuming without deciding that these projects were “connected,” the court concluded that the FWS was not required to consider them. The court reasoned, “[B]y their plain terms, the regulations that require the BLM to identify ‘connected’ projects when issuing its environmental impact statement do not apply to the FWS. Had Congress intended for the FWS to analyze ‘connected’ actions during its formal consultation process under the ESA, Congress would have stated so . . . .” (Citations omitted).