On March 25, 2014, in The Protect Our Communities Foundation et al. v. Jewell et al. [Click here to view the opinion], the US District Court for the Southern District of California issued a decision on a challenge to the Tule Wind Project and found in favor of the Federal Government defendants and intervenor-defendant Tule Wind LLC, on all claims. The plaintiffs had alleged violations of the Administrative Procedure Act, National Environmental Policy Act (“NEPA”), Migratory Bird Treaty Act (“Bird Act”) and Bald and Golden Eagle Protection Act (“Eagle Act”).
In particular, project developers should take note of the Court’s discussion and holding regarding the Bird Act and the Eagle Act. A recent trend in challenges to energy and infrastructure projects is the use of the Administrative Procedure Act to attempt to enforce the Bird Act or Eagle Act against federal agencies and the projects that they approve in their regulatory capacity. Anti-renewable-energy and anti-development groups are increasingly alleging in litigation that the mere potential to incidentally affect migratory birds requires federal agencies and/or project developers to obtain a permit under these laws as a precondition to any federal approval for the project. The Court rejected this argument.
The Court held that neither the Bird Act nor the Eagle Act requires a federal agency “to obtain a permit before acting in a regulatory capacity to authorize activity, such as development of a wind-energy facility, that may incidentally harm protected birds.” The Court further explained that in the Ninth Circuit, the scope of the Bird Act’s prohibitions “is quite narrow and holds that the statute does not even prohibit incidental take of protected birds from otherwise lawful activity.”
Tule Wind consulted with the BLM and the US Fish and Wildlife Service regarding Bird Act and Eagle Act compliance and had conducted several years of avian surveys to assess the potential impact on avian species in the vicinity of the project. Tule Wind also consulted federal agencies in developing a project-specific avian and bat protection plan, which prescribed a broad range of mitigation measures to avoid impacts to avian and bat wildlife and was a precondition for construction and operation of the project.
Regarding the plaintiffs’ NEPA claims, the Court deferred to the scientific and technical judgment of the Bureau of Land Management (“BLM”), which was supported by the voluminous administrative record, many technical reports, and responses to comments the agency prepared. Plaintiffs had alleged a variety of technical and scientific claims regarding, among other things, the feasibility of rooftop solar panels as an alternative to utility-scale energy generation, the potential public health impacts of “dirty electricity,” electromagnetic fields, stray voltage, induced current, and inaudible infrasound and low-frequency noise. The Court similarly rejected the plaintiffs’ claims regarding the need to conduct night-time bird surveys and studies to assess the impacts of noise on the reproductive activities of birds.
The Tule Wind opinion is part of a growing trend of case law in the Ninth Circuit holding that the Bird Act does not apply to the take of birds incidental to lawful commercial operations based on a theory that the project has a potential to take birds sometime in the future.