Western Watershed Project v. Ken Salazar (Interior Dept.)

Aug 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-56363. Appealed from the United States District Court for the Central District of California. In a brief 5-page order, the Appeals Court affirmed the district court order and denied a challenge by environmental interest to stop a $2.2 billion solar energy project in California because of concerns it would harm desert tortoises and other wildlife.

 

    The Appeals Court said, "In balancing the equities, the district court properly weighed the environmental harm posed by the Ivanpah Solar Electric Generating System (ISEGS) project against the possible damage to project funding, jobs, and the state and national renewable energy goals that would result from an injunction halting project construction, and concluded that the balance favored Appellees. . . The District Court also properly exercised its discretion in weighing Appellant's delay in seeking a preliminary injunction until after construction began, was temporarily halted, and begun anew, and some $712 million had been expended among the equitable factors. . ."

 

    Finally, the Appeals Court said, "The district court also did not abuse its discretion in analyzing the public interests at stake. It properly concluded that Appellant's contention that rooftop solar panels were a preferable source of renewable energy amounted to a policy dispute and could not support a finding that an injunction was in the public interest. The district court properly took into account the federal government's stated goal of increasing the supply of renewable energy and addressing the threat posed by climate change, as well as California's argument that the ISEGS project is critical to the state's goal of reducing fossil fuel use, thereby reducing pollution and improving health and energy security in the state. Appellant has pointed to no clear factual error or mistake of law in the district court's analysis of the public interest factors. Accordingly, we affirm the denial of Appellant's preliminary injunction motion."

 

    On August 5, NRG Energy, Google, BrightSource Energy and construction partner Bechtel announced that Ivanpah SEGS had reached the halfway mark of construction on the world's largest solar thermal project. Ivanpah has also reached its peak construction workforce, with more than 2,100 construction workers and project support staff on-site. The $2.2 billion project is on-track to be complete in 2013. Located on 3,600 acres of U.S. BLM managed land in southeastern California, ISEGS is a 392 megawatt (gross) solar thermal power facility developed by BrightSource Energy. The project began construction in October 2010, and will deliver power to serve BrightSource's signed contracts with PG&E and Southern California Edison.

 

    Access the complete order (click here). Access the Ivanpah SEGS website for complete project information (click here). Access the Western Watersheds California website for more information on their lawsuit (click here). [#Energy/Solar, #CA9]

 

GET THE REST OF TODAY'S NEWS (click here)
32 Years of Environmental Reporting for serious Environmental Professionals

Grand Canyon Trust v. U.S. Bureau of Reclamation

Aug 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16326. Appealed from the United States District Court for the District of Arizona. The Appeals Court explains that Grand Canyon Trust appeals the district court's grant of summary judgment in favor of the United States Bureau of Reclamation (Reclamation) and the United States Fish and Wildlife Service (FWS) rejecting the Trust's claims alleging that Reclamation and FWS violated the Endangered Species Act (ESA), the National Environmental Policy Act and the Administrative Procedure Act in the operation of the Glen Canyon Dam. The Appeals Court dismissed the appeals as "moot in part and affirm in part."

 

    Grand Canyon Trust (the Trust) is an organization devoted to the protection and restoration of the canyon country of the Colorado Plateau. Reclamation and FWS are agencies within the Department of the Interior. Reclamation is responsible for the operation of the Glen Canyon Dam (the Dam) situated on the Colorado River, and FWS is responsible for the protection of the humpback chub, a fish that exists primarily in the relatively inaccessible canyons of the Colorado River and that is listed as endangered under the Endangered Species Act (ESA). Intervenor-Appellees in the case are the seven Colorado River Basin States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming; the Colorado River Commission of Nevada; the Southern Nevada Water Authority; the Colorado River Energy Distributors Association; the Central Arizona Water Conservation District; the Imperial Irrigation District; and the Metropolitan Water District of Southern California (collectively, Intervenors).

 

    The case has an extremely complicated history (too lengthy to adequately explain here), but leads to the Trust filing this appeal raising issues: (1) whether the 2009 BiOp [biological opinion] is unlawful under the ESA; (2) whether the court has jurisdiction to review the 2009 Recovery Goals; (3) whether Reclamation violates the ESA by relying on the 2009 BiOp; (4) whether FWS's 2010 ITS [incidental take statement] is unlawful; (5) whether Reclamation violates the ESA by relying on the 2010 ITS; and (6) whether Reclamation must comply with the ESA and with NEPA procedures before issuing an AOP [annual operating plans]. The Appeals Court concludes on a number of issues:

• "Defendants-Appellees argue, and the Trust concedes, that the Trust's claims related to the 2009 BiOp and the 2010 BiOp are now moot. We agree. The Trust's claims that the 2009 BiOp is unlawful under the ESA; that Reclamation violates the ESA by relying on the 2009 BiOp; that the 2010 ITS is unlawful; and that Reclamation violates the ESA by relying on the 2010 ITS are moot."
• "we conclude that the issue of whether the district court similarly lacks jurisdiction under the APA to review the draft 2009 Recovery Goals is moot."
• "we hold that the issue of whether the APA supports review of the draft 2009 Recovery Goals as used in the 2009 BiOp is also moot."
• "Because Reclamation used the draft 2009 Recovery Goals as best available science, a discretionary use, the district court concluded that it lacked jurisdiction to consider the draft 2009 Recovery Goals under the ESA citizen suit provision. We agree."
• "We conclude that the ESA citizen suit provision does not support jurisdiction here because FWS did not fail to perform a non-discretionary act before using the science incorporated in the draft 2009 Recovery Goals to support its 2009 BiOp."
• "Finally, we vacate the judgment of the district court with respect to the 2009 BiOp and the 2010 ITS. . ."

    Access the complete opinion (click here). [#Water, #Wildlife, #CA9]

 

GET THE REST OF TODAY'S NEWS (click here)
32 Years of Environmental Reporting for serious Environmental Professionals