By Taiga Takahashi

In previous commentary, we have noted the importance of a well-developed administrative record in project approval in risk management, controlling the potential for delay, and in project-related litigation. The U.S. District Court for the Southern District of California recently affirmed this general principle in rejecting a broad-based challenge by an environmental group and a labor union (the “Plaintiffs”) in Desert Protective Council v. U.S. Department of the Interior, No. 12cv1281-GPC(PCL) (S.D. Cal. Feb. 27, 2013).[1]

The Plaintiffs’ challenges to the Ocotillo Wind Energy Facility Project (the “Project”) were based on the National Environmental Policy Act (“NEPA”), the Federal Land Policy and Management Act (“FLPMA”), and the Bald and Golden Eagle Protection Act (“BGEPA”).[2] In short, the Plaintiffs’ lawsuit sought “to seek an order from the Court requiring BLM to avoid the killing of any raptor or owl from the Project” by challenging the availability and integrity of the scientific studies that supported BLM’s decision to grant the right-of-way for the Project. Id.

Successfully challenging a project approval against a properly managed administrative record is difficult. The Plaintiffs argued, for example, that BLM “misappl[ied] raptor use numbers drawn from critical raptor studies[,]” used the wrong time period in calculating the baseline numbers of the Swainson’s Hawk, and failed to take a “hard look” at and sufficiently specify conditions of approval and mitigation measures (such as curtailment) that would prevent the killing of owls and raptors, among other things.

The court rejected each of the Plaintiffs’ arguments. First, as is often the case in APA record review cases, the court deferred to the agencies’ application of scientific methodology.  Specifically, it found that the plaintiffs failed to demonstrate that agencies’ conclusion that raptor use in the area was low was scientifically unsound; the court also found that plaintiffs’ arguments related to the Swainson’s Hawk amounted to nothing more than a dispute between experts. In such circumstances, the court found that an agency must have discretion to rely on the reasonable opinions of its own qualified experts.  Finally, with respect to the Plaintiffs’ argument that project curtailment was required to protect owls and other raptors, the court explained that NEPA “does not require a substantive result, but only requires that mitigation is discussed in sufficient detail.” The court therefore concluded that the record provided sufficient detail as to the mitigation measures for other protected raptors and owls, thereby satisfying the requirements of NEPA and the FLPMA.

The Ocotillo Wind Energy Facility Project began commercial operation in December 2012 and is already transmitting renewable wind energy to the Sunrise Powerlink, where major construction activities completed in June 2012.

[1] The court also rejected the Quechan Tribe’s separate challenge on National Historic Preservation Act, NEPA, and FLPMA grounds in the companion case Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dep’t of Interior, No. 12cv1167-GPC(PCL)(S.D. Cal. Feb. 27, 2013), as discussed by Janice M. Schneider & Andrea Hogan, Court Strikes Down Quechan Tribe’s Challenges to the Ocotillo Wind Energy Facility Project, Clean Energy Law Report (Mar. 19, 2013), on this blog.

[2] The plaintiffs did not pursue the BGEPA challenge and other previously raised NEPA claims on summary judgment, and the court therefore held that these claims were forfeited. See Desert Protective Council, supra, No. 12cv1281-GPC(PCL).