Jul 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-15799. Appealed from the United States District Court for the District of Nevada. In a brief, unpublished opinion, the Appeals Court affirmed the district court denial of a temporary restraining order/preliminary injunction and said, "Plaintiffs appeal the district court's order denying their motion for a preliminary injunction. . . We agree with the reasons thoughtfully expressed by the district court and find no abuse of discretion. . . Reviewing for abuse of discretion, we affirm."
The case concerns approval of a wind energy facility in Spring Valley, Nevada. Plaintiffs are two environmental organizations -- Western Watersheds Project and Center for Biological Diversity. Defendant is the Bureau of Land Management (BLM). Intervening defendant is Spring Valley Wind, LLC, the energy company developing the wind facility at issue. Plaintiffs filed a motion for a temporary restraining order and/or preliminary injunction in the district court seeking to bar the BLM from issuing a Notice to Proceed or otherwise authorizing construction and site clearing for the Spring Valley Wind Energy Facility which was set to commence on March 28, 2011.
Plaintiffs claim the BLM conducted a "fast track" approval of the Spring Valley Wind Facility so that the project could take advantage of federal financing under the American Recovery and Reinvestment Act, which required project approval by the end of 2010. It is alleged this approval process was pushed by high-level BLM officials and Spring Valley Wind, LLC proponents in violation of NEPA. Specifically, plaintiffs claim: (1) there are significant and unknown environmental impacts to the project site that warrant an EIS, not just an EA; (2) the BLM's decision provided no detailed statement of reasons establishing that the project's impacts are insignificant; (3) the BLM failed to take a "hard look" at the environmental impacts without adequate scientific data, including impacts to bats and sage-grouse, and the cumulative environmental impacts of the project; (4) the decision did not properly consider or address public comments and opposing views; and (5) the final EA failed to consider an adequate range of alternative courses of action.
The district court ruled that, "Having fully considered the administrative record and the arguments of the parties, and having weighed all relevant factors necessary for issuing a preliminary injunction -- the likelihood of success on the merits, the likelihood of irreparable harm, the balance of equities, and the public interest -- the court finds that the plaintiffs have failed to carry their burden of showing that a preliminary injunction should issue at this time. Plaintiffs' motion for a temporary restraining order/preliminary injunction is denied."
One of the Appeals Court justices wrote separately saying, "I concur in the result. I write separately, however, to express my concern about the district court's conclusion that Plaintiffs are unlikely to succeed on the merits. . . agree with the majority that the district court did not abuse its discretion by determining that the project's construction is unlikely to cause irreparable harm to bats or sage grouse. Nor did the district court err when balancing the equities in Defendants' favor or when considering the public's interest in the project. In my view, however, Plaintiffs are likely to succeed on the merits because the BLM failed adequately to consider the potentially significant cumulative impacts of the project and other reasonably foreseeable future actions. . ."
Access the unpublished opinion and separate concurrence and concern opinion (click here). Access links to the district court decision and additional briefs and documents from the Advocates for the West website who represented the Plaintiffs (click here). [*Energy/Wind, *CA9]
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