Conservationists Ask for New Decision on the Searchlight Wind Project
March 12, 2015 - Last week, conservation groups, including Basin & Range Watch, asked the U.S. District Court in Reno, Nevada to order Secretary of the Interior Sally Jewell to take a fresh look at a controversial wind project in an area with the densest concentrations of protected golden eagles and one of the densest desert tortoise populations in Nevada. The latest motion asks Judge Miranda Du to vacate the Record of Decision and require the Secretary of the Interior to make a new decision whether to approve the project after the Bureau of Land Management and the U.S. Fish and Wildlife Service provide additional explanation for their wildlife analyses.
On February 3, 2015, Judge Du had ordered BLM to prepare a supplemental Environmental Impact Statement on eagles due to inadequate surveys. In 2011, surveys funded by BLM found twenty-eight golden eagle nests within 10 miles of the project site, many more than the three nests the developer reported in its flawed avian surveys. However, the 2011 surveys were not included in the BLM’s original environmental study. In addition, a new study shows that golden eagles in the Mojave Desert travel nearly 10 times as far from their nests to forage as previously thought, putting them in harm’s way from wind turbine collisions.
Judge Du also ordered BLM and USFWS to address their inadequate analyses of the density of desert tortoises in the project area, the adverse effects on desert tortoise habitat due to noise, the remuneration fee that the developer would have to pay as compensation for harming tortoises, blasting mitigation measures, the status of USFWS’s recommendations regarding eagle take permitting and an Eagle Conservation Plan, the conclusions about risks to bald eagles, protocols for golden eagle surveys, and risks and mitigation measures for bat species.
Basin & Range Watch, one of the conservationist plaintiffs, called for the Searchlight area to be a solar and wind energy exclusion zone in their comments on the Bureau of
Land Management Southern Nevada Resource Management Plan revision, which had a deadline for submitting comments on March 9.
The Searchlight Wind Energy Project would site 87 industrial scale wind turbines over 400 feet tall, about the height of the Palms Hotel, on the ridges and uplands next to Searchlight, Nevada and bordering scenic Lake Mead National Recreation Area. The project would negatively impact the scenery, threaten the desert tortoise, kill golden eagles, desecrate the view of Spirit Mountain—sacred to Native American Tribes— impact the historical mining district and damage the future tourism potential of the community.
Plaintiff and Searchlight Resident Judy Bundorf said, “The Searchlight area merits preservation from large-scale industrial development. The historic town is the ‘Gateway to Lake Mohave’ and Cottonwood Cove in the Lake Mead National Recreation Area, and is surrounded by beautiful Joshua trees and abundant wildlife. Thousands of tourists visit each year, and enjoy the wide-open vistas and unspoiled Mojave Desert scenery. Allowing a 9,000 acre, 14 square mile industrial wind energy project around the town would be a death knell for tourism, and for the rural lifestyle of people who call the little community home.”
“The project would be developed in a very scenic region that has a great potential to expand its tourism economy. The high desert surrounding Searchlight supports a rich diversity of flora and fauna including very old Joshua tree forests. The area should be managed to maintain open space. There are limitless opportunities for hiking, backcountry 4 wheel driving, wildlife viewing, boating, rock hounding and photography. The Bureau of Land Management has a unique opportunity to rethink this decision, cancel this project and manage the area for its scenic, cultural, wildlife and recreational values,” said Kevin Emmerich, Co-founder of Basin and Range Watch.
Contact: Kevin Emmerich at 775-764-1080 - emailbasinandrange@gmail.com
Judge Rules Against Interior and Apex
^Joshua trees in the Searchlight Hills.
February 5, 2015 - Reno NV - In the case where Plaintiffs Judy Bundorf, Friends of Searchlight Desert and Mountains, Basin and Range Watch, Ellen Ross, and Ronald Van Fleet, Sr., allege that Defendants Secretary of the Interior Sally Jewell, Bureau of Land Management, and U.S. Fish and Wildlife Service violated several environmental statutes in approving a wind energy project in Southern Nevada. Searchlight Wind Energy, LLC , the project’s proponent, intervened as a defendant in November 2013.
On February 3 Judge Miranda Du issued her opinion granting, in part, our motion for summary judgment, and denying the government's (and Apex's) motions for summary judgment. She ordered BLM to prepare a Supplemental EIS to address golden eagle impacts in their Final Environmental Impact Statement (FEIS). She did not, however, vacate the Record of Decision (ROD) explicitly, which we feel needs clarification. A new decision should be made along with a Supplemental EIS.
See a summary on Leagle.com.
Searchlight Wind Project Court Hearing: National Environmental Policy Act Weakened or Upheld?
Reno NV - A court hearing on November 24, 2014 at the Reno, Nevada, Federal Courthouse was attended by attorneys representing the Department of Interior and Apex Energy (as Searchlight Wind Energy, LLC), the project developer of the Searchlight Wind Energy Project which is proposed for desert land managed by the Bureau of Land Management in the Searchlight Hills of Clark County, NV. Judge Miranda Du set up a conference line for attendees in Las Vegas, and as plaintiffs, Basin & Range Watch listened in and took notes.
Friends of Searchlight Desert and Mountains, Basin & Range Watch, and local residents were represented by Dave Becker Law Office of David H. Becker and Erin Madden of Cascadia Law (both of Portand, Oregon) to challenge the decision by the Secretary of Interior approving the Searchlight Wind Energy Project and the U.S. Fish & Wildlife Service’s Biological Opinion that concluded the Project would not jeopardize threatened desert tortoises. The defendants for Interior were represented by U.S. Department of Justice attorneys James Maysonett and Maureen Rudolph, and Apex by attorney Linda Bullen of the now-defunct firm Lionel Sawyer & Collins.
The Importance of Environmental Law for Public Land
The National Environmental Policy Act (NEPA) of 1969 requires federal agencies to integrate environmental values into their decision making process. Federal agencies such as Bureau of Land Management (BLM) are required to systematically assess the environmental impacts of their proposed actions and consider alternative ways of accomplishing their missions, which are less damaging to and protective of the environment. NEPA Section 101(b) states it is the continuing responsibility of the federal government to use all practicable means, consistent with other essential considerations of national policy to avoid environmental degradation, preserve historic, cultural, and natural resources, and promote the widest range of beneficial uses of the environment without undesirable and unintentional consequences.
According to the Council on Environmental Quality (which was established by Congress as part of the National Environmental Policy Act):
Signed into law by President Richard Nixon on January 1, 1970, NEPA set forth a bold new vision for America. Acknowledging the decades of environmental neglect that had significantly degraded the nation's landscape and damaged the human environment, the law was established to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony... (https://ceq.doe.gov/)
Background to the Searchlight Wind Energy Project Case
On March 13, 2013, then Secretary of Interior Ken Salazar signed a Record of Decision (ROD) approving the grant of rights-of-way over public lands administered by the defendant BLM for the Searchlight Wind Energy Project. The ROD approved selection of the “Preferred Alternative” from a December 2012 Final Environmental Impact Statement (FEIS).
The history of the Project is rather long: the Searchlight Wind Energy, LLC Project was initiated in 2007 with the installation of the meteorological towers by Catamount; in 2008 it was sold to Duke Energy (http://www.duke-energy.com/environment/wind.asp). Then a year ago, in January 2014, Duke sold the Project to Apex.
The Searchlight Wind Energy Project would involve rights-of-way for the construction, operation and maintenance of 87 wind turbine generators on approximately 18,949 acres of public lands managed by BLM on hills east of the town of Searchlight, intended to produce up to 200 megawatts (MW) of electricity. The Project would include 6.1 miles of overhead transmission lines connecting two substations on the generator site and 2.6 miles of overhead transmission lines crossing the Piute-Eldorado Valley Area of Critical Environmental Concern (ACEC) to connect the project to a new substation adjacent to the existing Davis-Mead 230 kilovolt transmission line, and involve the construction or upgrading of 36.7 miles of road, of which 27.5 miles are new roads and 9.2 are improved.
While the ROD was signed nearly two years ago, the Project is completely stalled. Apex has not signed a Power Purchase Agreement to sell the power from the Project, and has not provided any of the nearly 30 additional studies or pre-construction reports that BLM required before it will issue Apex a Notice to Proceed with construction of the Project. Although BLM attorney Mr. Maysonnett stated at the hearing that the Project would provide 200 MW of clean energy to Nevada, the fact is that there is no chance, without a Power Purchase Agreement in Nevada, that this could be true, and the actual power output will be nowhere near 200 MW. An Apex employee testified to the Nevada Public Utility Commission in 2013 that the actual power output—based on the variability of the wind—would be no more than about 30% of 200 MW (a high estimate in our experience looking at wind projects).
Significant Information Left Out
Judge Du began the hearing by reviewing several pieces of evidence related to the Project’s potential harm to desert tortoises and golden eagles that the plaintiffs argue should be considered, beyond the administrative records that BLM and U.S. Fish and Wildlife Service submitted to the court to document their decision. The plaintiffs had filed two declarations by wildlife biologist Scott Cashen which detailed eagle nest survey data from Nevada Department of Wildlife (NDOW) surveys in 2011 which BLM had commissioned and paid for but which BLM did not include in the administrative record, along with other materials illustrating and summarizing the Project’s likely impacts to desert tortoises. The declarations are meant to help Judge Du see how the BLM and U.S. Fish and Wildlife Service failed to consider several important factors in reaching their decisions.
Attorneys for the defendants argued that they thought the court has what it needs already in the administrative records the agency provided to the court, and the agencies addressed everything that was needed.
But BLM did not sign the ROW until June 2014, and information in the ROW document is different than what was offered at the time of the ROD. We maintain that BLM was (and still is) engaged in a "major federal action" associated with the project, underscoring BLM's obligation to supplement the EIS based on new information on eagle and desert tortoise impacts. Even with the signing of the ROW grant we believe that BLM is still obligated to consider new information and supplement its EIS at least until it issues a Notice to Proceed with construction of the Project, which is still a long way off.
Another new major federal action was a plan to re-arrange the wind turbine generators because of Department of Defense (DOD) concerns. BLM has a dozen or so new such plans to review that takes into account three years of new information. Twenty months after the ROD was signed, there is no action on the Project even with all this new information. So there is a continuing duty to supplement the EIS. The right-of-way grant requires Apex to submit a new Plan of Development before it can get a Notice to Proceed, and BLM must decide whether to approve that Plan. There are many points BLM did not consider. Curtailment of wind turbine generators during certain times was another issue that was brought up from DOD input, and the argument of whether this was a discretionary act on the part of BLM was unclear.
We believe Secretary Salazar approved the ROD based on the FEIS’s inadequate and incomplete analysis of the likely impacts to desert tortoises, golden eagles, bald eagles, bighorn sheep, and many other sensitive species of birds, bats, and wildlife that live in or migrate through the Searchlight area. Even though the FEIS acknowledged that other wind facilities result in mortality to raptors, other birds, and bats, this FEIS failed to address the likely direct, indirect, and cumulative impacts of the transmission line and wind facility on these species and their habitats, in violation of NEPA. Approval of the Project also will allow the unpermitted taking of golden eagles and bald eagles in violation of the Bald & Golden Eagle Protection Act (BGEPA), similar to the recent killing of a golden eagle at the Spring Valley Wind facility near Ely, Nevada, and dozens of golden eagles killed by wind projects in Wyoming that the U.S. Fish and Wildlife Service have sued those project developers over. By not complying with the applicable legal duties and requirements, our attorney Dave Becker argued that Secretary Salazar acted in a manner that is arbitrary, capricious, an abuse of discretion, and contrary to law under the Administrative Procedure Act, requiring reversal and remand by the Court.
The Public Process
The Searchlight Wind Project would place an industrial-scale wind energy development within a valuable Mojave Desert habitat surrounded by an ACEC established for the protection of the federally threatened desert tortoise that the Las Vegas Resource Management Plan (that guides BLM's management) excludes from wind energy development, in violation of the Federal Land Policy and Management Act of 1976 (FLPMA). We believe the defendant agencies tasked with reviewing the effects of the Searchlight Wind Energy Project fell short of their obligations under NEPA and the Endangered Species Act (ESA) to evaluate the environmental impacts to tortoises, eagles, and other wildlife before the Secretary approved the Project. In defending the BLM’s NEPA analysis of impacts to tortoises, birds and bats, defendants relied almost exclusively on documents — the US Fish and Wildlife Service’s Biological Opinion and BLM's Bird and Bat Conservation Strategy — that were prepared after the public comment period closed, subverting the democratic decision making process that Congress intended NEPA to foster.
Judge Du asked if the Biological Opinion was flawed, making agency actions arbitrary and capricious? Mr. Becker answered that yes, BLM should go back and do new scoping, new public comments, and a new supplemental EIS.
In administrative law a commenter has to present an issue, and alert BLM to an issue in the comment period. The public tries to raise issues. The judge asked if the plaintiff's argument is the failure to exhaust? Mr. Becker answered that the public comment period lasted from from January 2012 to April 2012; yet the the Biological Opinion came out in September 2012 and Bird and Bat Conservation Strategy came out in November 2012. The public did not have access to those documents issued six months after the public comment period ended. We argued that the agency should go out and do new scoping, new public comments, and a new Supplemental EIS.
Against this, the defendant attorneys argued that the court need not look outside the administrative record, all the issues were adequately addressed. They claimed this was not a major federal action. An agency action -- the implementation of a plan -- is different from a major federal action.
Mr. Becker argued that compliance with the law is the government’s obligation, not the plaintiffs’. The defendants’ violation of FLPMA and their failures to take a “hard look” under NEPA and to insure against jeopardy to tortoises or adverse modification of tortoise critical habitat under the ESA require this Court to set aside the approval of the Project. BLM has full discretion to stop the project.
Another potential FLPMA violation is that BLM appears to have not insured that the wind project applicant Apex has the technical and financial wherewithal to build the project.
Part of our argument is that BLM exercised discretion in changing mitigation for certain biological impacts of the project, and this is a new decision. Attorneys argued about whether these agency actions are "major federal actions" or merely implementation of a mitigation plan.
The judge asked if the the U.S. Fish and Wildlife Service’s Biological Opinion was flawed, would that make making BLM decision to approve the Project arbitrary and capricious with respect to impacts on desert tortoise. Mr. Becker answered, yes, and this would mean that the NEPA review was not full and fair. The public needs to be informed, and the Secretary of the Interior (the decision maker) also needs to be informed with full and accurate information. The information cannot be misleading.
A Full and Fair Review of Golden Eagle Impacts?
^Survey map of golden eagle nest density in Nevada, the darker red colors indicate survey blocks with higher numbers of nests. The Searchlight area has some of the highest nest density in the state.
Newly-disclosed eagle nest survey data from the NDOW (see above) shows that there are 28 golden eagle nests within ten miles of the Searchlight Wind Energy Project site, not the three eagle nests that the developer's consultant reported from its survey and which BLM uncritically copied into its FEIS. This significant new information regarding the status of golden eagles warrants supplementation of the FEIS to accurately disclose and evaluate the likely eagle mortality from the Project.
BLM had information in 2011 of 28 golden eagle nests, yet the developer's biological consultant only counted three. That is what made it into the EIS: three nests. The public had no idea that many more nests were actually in the area of the wind project proposal. BLM had partly funded eagle nest surveys across Nevada in 2011 undertaken by NDOW and the Great Basin Bird Observatory, yet this nest data had not made it into the EIS. The EIS has only a few brief sentences on eagle impacts. BLM has an obligation to disclose information, not sweep it under the rug. That is a violation of NEPA. This is not a full and fair discussion.
The Bird and Bat Conservation Strategy says only one eagle will be killed every 5 years, but this is based on only three nests, not the actual 28 nests in the NDOW survey.
At the Spring Valley Wind Project near Great Basin National Park in eastern Nevada, 566 bats were killed in the first year of operation, yet the threshold was 199 -- a quantitative estimate of mortality that was provided in the Environmental Assessment for Spring Valley Wind before it was built. NEPA requires the agency to quantify impacts or explain why this is impossible. But in the Searchlight Wind FEIS, BLM said that pre-construction survey data is a poor predictor of impacts. This does not hold water. Agencies have done this at other projects, and no argument is given that it is not feasible to make an estimate of likely bat mortality, or of bird mortality.
There is no discussion in the Searchlight FEIS of whether and how mitigation measures can be effective. This is needed according to NEPA.
To say that a determination of acceptable levels of mitigation of impacts will be done in the future forces this discussion outside of public review. There is no way to say how it will be effective. Merely listing mitigation measures does not comply with NEPA. We need to know how many birds are likely to be killed in order to know how many hours of curtailment, for example, will be needed (where wind turbine generators are stopped even though wind is blowing to prevent harm to birds and bats). We need a quantified estimate of the number of birds and bats that might be killed, such as provided at the Steens Mountain wind project in Oregon, and for Spring Valley Wind.
The agency needs to take a hard look -- in other cases the court vacated an agency’s decision because of such shortcomings.
Desert Tortoise Impacts
For desert tortoise it is a question of how many are actually out there -- we need baseline data. According to BLMs FEIS there are only 119 tortoises estimated to be in the project area 18,989 acres. But the initial survey to determine this only covered 3,612 acres, one-sixth of the site, so the numbers are an extrapolation. But the numbers are wrong -- in the Biological Opinion, U.S. Fish and Wildlife Service states that there are 150 tortoises in just the 3,6012 acres that were surveyed. That would mean there are about 900 tortoises in the whole project area. This is a fundamental failure of BLM to provide accurate scientific information to the public and Secretary of Interior in the NEPA analysis itself.
The judge seemed interested and asked many questions -- did BLM fail to consider prevailing standards?
The defendants answered that desert tortoise numbers are not significant...it just doesn't matter.
Mr. Becker stated that irrationality is shown by conclusions not supported by scientific facts or misinformation.
The judge next asked if tortoises do not rely on auditory cues for survival? Plaintiffs had argued in their brief that BLM had not taken into account the effects on tortoises from chronic noise from the 87 turbines, at a level approximating that of background car traffic and in the same frequency range in which tortoises communicate—and pointed to scientific studies that show that tortoises vocalize in order to find mates and stake out territory, as well as listening for noise from overhead to avoid predators. The U.S. Fish and Wildlife Service’s Biological Opinion, however, claimed that tortoises do not rely on auditory cues for survival and therefore an evaluation of turbine noise effects was not required.
The defendant said they reject the theory that wind turbine noise will cause a take of tortoise. Individuals might move away from the noise but this is not a take. Turbine noise would not be a significant effect. Construction and truck traffic, however, would result in possible take.
Eagle Mitigation
Ms. Rudolph, representing the federal agencies, said the plaintiff was challenging BLM's methodology, but she said US Fish and Wildlife Service guidance on eagle surveys wasn't issued when some of the company's surveys were done. At the time baseline biological surveys were done, Nevada Division of Wildlife had no standard methodology so the company agreed with BLM on how to proceed with winter eagle surveys. She said BLM did what was reasonable under NEPA with respect to nest surveys. They did an independent review of consultant's data, she said.
As to the effectiveness of eagle mitigation, she discussed case law where NEPA requires agencies to provide some discussion of effectiveness of mitigation, and that was done here. The adaptive mitigation measures in the Bird and Bat Conservation Strategy is meeting the requirements, she claimed.
The judge asked if BLM did not rely on 2011 NDOW survey data that was omitted from the administrative record? In Scott Cashen’s second declaration, we had provided the detailed NDOW survey data for eagle nests in the state of Nevada, including for the Searchlight Hills. This showed that the area where the Searchlight Wind Energy Project would be built has the highest concentrations of golden eagle nests in the entire state of Nevada. Ms. Rudolph answered that she believed BLM did not rely on this information. Judge Du responded, Doesn't that support the plaintiff? That this was done in an arbitrary and capricious manner?
Ms. Rudolph answered that to be honest she did not read our documents (the declarations by wildlife biologist Scott Cashen which detailed the eagle nest survey data missing from the Searchlight Wind Energy Project BLM environmental review). She said she was not aware that BLM looked at this data at the time of decision-making.
Mitigation Effectiveness
Next the judge asked about the plaintiff's argument about the effectiveness of mitigation?
Ms. Rudolph responded that there was a lot of discussion about turtles in the EIS (her co-counsel corrected her that they are tortoises). This was discussed in the Biological Opinion which was incorporated into the EIS. Sixty adult tortoises were counted, and the plaintiff alleges that 80 tortoises were actually found—the difference appears to be that the developer’s consultant incorrectly applied the U.S. Fish and Wildlife Service protocol for which tortoises to count, and were supposed to include, as “above-ground,” tortoises that were in their burrows but still visible. The above-ground numbers were discussed in the EIS; Ms. Rudolph she said the submitted surveys, methodology, and extrapolated numbers were fully reasonable under NEPA.
Judge Du said the FEIS has one number of tortoises found, yet the Biological Opinion has a different number.
Ms. Rudolph said, yes there is a discrepancy. It is not a great number–-even though the FEIS says 119 in 18,989 acres and the Biological Opinion says 150 in 3,612 acres. She went on to say that even if there was a miscount, the mitigation would still be effective.
But the judge went on to ask, how can mitigation be effective when the underlying numbers are incorrect?
Ms. Rudolph responded that even if there was a horrible miscalculation they could translocate however many tortoises as are actually there.
The judge said, doesn't that effect the NEPA process?
Ms. Rudolph answered, Um....
Judge Du went on to say that the number is not just background information, the whole process is flawed if the number is incorrect. So this would be arbitrary and capricious. She wanted a response.
Ms. Rudolph said that both numbers are reasonable -- the BLM number and the number used by U.S. Fish and Wildlife Service.
Judge Du asked if she represented both BLM and Fish and Wildlife Service?
Ms. Rudolph said yes, both agencies. She said both agency numbers were correct. The decision-makers made informed decisions, and the public could have taken issue. Even if there was a miscount of tortoises, this can be remedied at a future date she explained. NEPA does not require a quantification of mortality of tortoises, she said. Ms. Rudolph did not try to explain how the public could have taken issue about the figure in the September 2012 Biological Opinion when the public comment period for the EIS closed in April 2012.
The judge circled back to the question of bird and bat impacts, and asked if BLM was capable of making a quantification of bird mortality?
Ms. Rudolph stated that it was reasonable not to, but to instead discuss the impacts in qualitative terms.
Mr. Becker responded that the U.S. Fish and Wildlife Service protocol was available in 2010 for eagle nest surveying. Consultants had those protocols available and did not follow them in 2011. We learned about the other survey data early in 2014; it is not the publics duty to provide BLM with data it already has.
Arguing on behalf of Apex, Linda Bullen said that there were 4 years of intense environmental review, 3 public scoping meetings, 3 public meetings. The Searchlight wind project was 359 MW, now it is down to 200 MW; it was 24,000 acres and is now down to 18,000 acres. These were based on direct responses to public concerns. She said the NEPA process truly works.
Ms. Rudolph joined in that the mitigation measures -- fencing of roads, speed limits, will apply if there is one desert tortoise or a thousand tortoises present. It won't make any difference, these mitigation measures will protect any number of desert tortoises.
Ms. Bullen also said the alternative of only 87 turbines was uneconomic. The Distributed Generation alternative did not meet the Purpose and Need of the developer and of BLM.
Judge Du said she would make a decision in the case likely in January 2014.
