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Attorneys for Petitioners
UNITED STATES COURT OF APPEALS
FOR THE
NINTH CIRCUIT
Docket No. 15-72788
FRIENDS OF THE COLUMBIA GORGE and SAVE OUR SCENIC AREA,
Petitioners
v.
BONNEVILLE POWER ADMINISTRATION,
Respondent
OPENING BRIEF OF PETITIONERS
__________________________________________________________________ David H. Becker (OSB # 081507) Law Office of David H. Becker, LLC 833 SE Main Street # 302 Portland, OR 97214 (503) 388-9160 davebeckerlaw@gmail.com
Gary K. Kahn (OSB # 814810) Reeves Kahn Hennessy & Elkins P.O. Box 86100 Portland OR 97286 (503) 777-5473 gkahn@rke-law.com
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CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1, Petitioners Friends of the Columbia Gorge
and Save Our Scenic Area state that they have no parent corporations and do not
issue shares of stock, and accordingly no publicly held corporation owns 10% or
more of their stock.
Respectfully submitted this 29th day of March, 2016.
/s/ David H. Becker David H. Becker (OSB # 081507)
Law Office of David H. Becker, LLC
Attorney for Petitioners
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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ..................................................... i TABLE OF CONTENTS ....................................................................................... ii TABLE OF AUTHORITIES ................................................................................ iv GLOSSARY OF ACRONYMS ........................................................................... vii STATEMENT OF JURISDICTION ...................................................................... 1 ISSUES PRESENTED FOR REVIEW .................................................................. 2 STATEMENT OF THE CASE ............................................................................... 3 STATEMENT OF THE RELEVANT FACTS ..................................................... 6
I. THE WHISTLING RIDGE ENERGY PROJECT ....................................... 6
A. The Evolution of the Project and the Application to the Washington Energy Facility Site Evaluation Council ............................ 6
B. Birds, Bats, and Surveys at the Project Site ............................................ 10 C. Mitigation Measures .................................................................................. 11
II. ENVIRONMENTAL REVIEW AND SITE CERTIFICATION ............. 12
A. The Draft Environmental Impact Statement .......................................... 12 B. The EFSEC Administrative Process ......................................................... 16 C. The Final Environmental Impact Statement ........................................... 18 D. The Site Certification Agreement and State Court Litigation .............. 21
III. BPA’S APPROVAL OF THE INTERCONNECTION ........................... 24
A. BPA’s Supplement Analysis ...................................................................... 24 B. BPA’s Record of Decision .......................................................................... 25
SUMMARY OF THE ARGUMENT ................................................................... 27 ARGUMENT .......................................................................................................... 28
I. STANDARD OF REVIEW ........................................................................ 28 II. THE NATIONAL ENVIRONMENTAL POLICY ACT ...................... 30
A. Purposes of NEPA .................................................................................... 30 1. Disclosure of Environmental Impacts and Informed Decisionmaking ............................................................................................ 30 2. Democratic Decisionmaking .............................................................. 32
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B. Alternatives, Mitigation, and the Hard Look ........................................ 33 C. Supplementation of NEPA Analyses ...................................................... 35
III. BPA VIOLATED NEPA BY BASING ITS ROD ON AN FEIS
THAT LACKED A REASONABLE RANGE OF ALTERNATIVES. ....................................................................................... 36
A. NEPA Requires the Comparison of the Effects of Different Alternatives, Not an Evaluation of a Single Broadly Stated Alternative With Many Potential Variations. ....................................... 36
1. Evaluating only the worst-case scenario of a single, indeterminate action alternative does not satisfy an agency’s obligation to consider all reasonable alternatives. ............................................................................... 36 2. BPA’s failure to evaluate the comparative impacts of a range of alternatives thwarted the fundamental purposes of NEPA. .................... 39 3. Feasible alternative turbine configurations were available that would have caused different environmental effects. ................................ 42
B. The Reasons BPA Offered for Not Considering Different Turbine Configurations Were Specious. ................................................ 45
IV. BPA VIOLATED NEPA BY FAILING TO EVALUATE THE
EFFECTIVENESS OF MITIGATION MEASURES. ............................ 46 V. THE FEIS DID NOT TAKE A HARD LOOK AT THE
PROJECT’S POTENTIAL HARM TO BIRDS AND BATS. ................ 50 A. The FEIS’s Analysis of Impacts to Birds Violated NEPA. .................. 51
1. BPA’s conclusion that negative impacts to local population levels are unlikely was arbitrary and capricious. ............................................... 51 2. The FEIS failed to take a hard look at the likely harm to olive-sided flycatchers. .......................................................................................... 53
B. The FEIS’s Analysis of Impacts to Bats Violated NEPA. .................... 57 VI. BPA VIOLATED NEPA BY FAILING TO SUPPLEMENT THE
FEIS BEFORE ISSUING THE ROD. ....................................................... 58 A. The Changes in the Proposed Action Require a Supplemental
EIS. ............................................................................................................. 59 B. An SEIS is Necessary to Update Stale Bird and Bat Survey Data. ..... 60
CONCLUSION ....................................................................................................... 61
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TABLE OF AUTHORITIES
Cases ‘Ilio’ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083 (9th Cir. 2006) ........................ 44 Alliance for the Wild Rockies v. Lyder, 728 F. Supp. 2d 1126 (D. Mont. 2010) ......................................................... 55, 56 Animal Def. Council v. Hodel, 840 F.2d 1432 (9th Cir. 1988), amended, 867 F.2d 1244 (9th Cir. 1989) ............................................................. 59 Ass’n of Pub. Agency Customers, Inc. v. BPA, 126 F.3d 1158 (9th Cir 1997) ....... 29 Bundorf v. Jewell, -- F. Supp. 3d --, No. 2:13-CV-00616-MMD-PA, 2015 WL 430600 (D. Nev. Feb. 3, 2015) ............................................................. 42 Cal. v. Block, 690 F.2d 753 (9th Cir. 1982) ...................................................... 33, 40 City of Carmel-by-the-Sea v. U.S. Dep’t. of Transp., 123 F.3d 1142 (9th Cir. 1997) .............................................................................. 34 Ctr. for Biol. Diversity v. U.S. Dep’t of the Interior, 623 F.3d 633 (9th Cir. 2010) ......................................................................... 34, 40 Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) ........................................... 31 Friends of Southeast’s Future v. Morrison, 153 F.3d 1059 (9th Cir. 1998) .... 34, 43 Friends of the Clearwater v. Dombeck, 222 F.3d 552 (9th Cir. 2000).................... 35 Half Moon Bay Fishermans’ Marketing Ass’n v. Carlucci, 857 F.2d 505 (9th Cir. 1988) ......................................................................... 51, 56 Idaho Sporting Cong. v. Thomas, 137 F.3d 1146 (9th Cir. 1998) .............. 31, 52, 55 Johnston v. Davis, 698 F.2d 1088 (10th Cir. 1983) ................................................. 59 Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989 (9th Cir. 2004) .. 30, 52, 55 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) ......................................... 51 Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) ........................................ 61 Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) ................................ 31, 41 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ........................................................................................ 29, 55 Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir. 1999) 44, 46 N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067 (9th Cir. 2011) ........................................................... 52, 56, 58, 61 Nat’l Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174 (4th Cir. 2005) .............. 35 Nat’l Trust for Historic Pres. v. Suazo, No. CV-13-01973-PHX-DGC, 2015 WL 1432632 (D. Ariz. Mar. 27, 2015) ....................................................... 49 Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2005) ......................................................................... 39, 56 Native Village of Point Hope v. Jewell, 740 F.3d 489 (9th Cir. 2014) .................... 39
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Neighbors of Cuddy Mtn. v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir. 1998) ..................................................... 35, 47, 49, 53, 57 Nw. Coal. for Alternatives to Pesticides v. EPA, 544 F.3d 1043 (9th Cir. 2008) ... 30 Nw. Envtl. Def. Ctr. v. BPA, 117 F.3d 1520 (9th Cir. 1997) ..................................... 2 Okanogan Highlands Alliance v. Williams, 236 F.3d 468 (9th Cir. 2000) ............. 49 Or. Natural Desert Ass’n v. BLM, 625 F.3d 1092 (9th Cir. 2010) ............. 32, 39, 41 Or. Natural Res. Council Fund v. BLM, 470 F.3d 818 (9th Cir. 2006) .................. 35 Or. Natural Res. Council Fund v. Brong, 492 F.3d 1120 (9th Cir. 2007) .............. 31 Or. Natural Res. Council v. Marsh, 52 F.3d 1485 (9th Cir. 1995) .......................... 59 Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768 (9th Cir. 2006) ......................... 42 Portland Gen. Elec. v. BPA, 501 F.3d 1009 (9th Cir. 2007) ................................... 28 Protect our Communities Found. v. Jewell, No. 13CV575 JLS JMA, 2014 WL 1364453 (S.D. Cal. Mar. 25, 2014) ...................................................... 42 Russell Country Sportsmen v. U.S. Forest Serv., 668 F.3d 1037 (9th Cir. 2011) ... 60 S. Fork Band Council of W. Shoshone v. U.S. Dep’t of the Interior, 588 F.3d 718 (9th Cir. 2009) ................................................................... 35, 47, 49 Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007) ........................................ 29 Stop H-3 Ass’n v. Dole, 740 F.2d 1442 (9th Cir. 1984) .......................................... 36 Tillamook County v. U.S. Army Corps of Eng’rs, 288 F.3d 1140 (9th Cir. 2002) .. 48 Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir. 1974) ..................................... 33 W. Watersheds Project v. BLM, 774 F. Supp. 2d 1089 (D. Nev. 2011) .................. 57 W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) ................. 32 Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105 (9th Cir. 2000) .............................................................................. 48
Statutes 5 U.S.C. § 706(2)(A) ................................................................................................ 29 5 U.S.C. § 706(2)(D) ......................................................................................... 29, 33 16 U.S.C. § 839f(e)(5) ........................................................................................ 1, 28 16 U.S.C. §§ 544–544p .............................................................................................. 3 42 U.S.C. § 4331 ...................................................................................................... 30 42 U.S.C. § 4332(2)(C) ............................................................................................ 30 42 U.S.C. § 4332(2)(C)(ii) ....................................................................................... 47 42 U.S.C. § 4332(2)(C)(iii) ...................................................................................... 33 42 U.S.C. § 4332(2)(E) ..................................................................................... 33, 36 42 U.S.C. §§ 4321–47 ................................................................................................ 1 // //
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Regulations 10 C.F.R. § 1021.314(c) ........................................................................................... 36 40 C.F.R. § 1500.1(b) .............................................................................................. 32 40 C.F.R. § 1500.2(d) .............................................................................................. 32 40 C.F.R. § 1501.4(a)(1) .......................................................................................... 30 40 C.F.R. § 1502.1 ................................................................................................... 40 40 C.F.R. § 1502.14 .............................................................................. 33, 34, 38, 40 40 C.F.R. § 1502.14(a) ................................................................................ 34, 36, 41 40 C.F.R. § 1502.14(b) ..................................................................................... 34, 41 40 C.F.R. § 1502.14(c) ...................................................................................... 34, 41 40 C.F.R. § 1502.16(h) ............................................................................................ 34 40 C.F.R. § 1502.4(a) ............................................................................................... 39 40 C.F.R. § 1502.9(c) ............................................................................................... 35 40 C.F.R. § 1502.9(c)(1)(ii) ..................................................................................... 35 40 C.F.R. § 1508.9 ................................................................................................... 30
OtherAuthorities Council on Envtl. Quality, Forty Most Asked Questions Concerning CEQ’s
National Policy Act Regulation, 46 Fed. Reg. 18026 (Mar. 23, 1981) ......... 37, 38
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GLOSSARY OF ACRONYMS APA Administrative Procedure Act
BMP Best Management Practice
BPA Bonneville Power Administration
CEQ Council on Environmental Quality
DEIS Draft Environmental Impact Statement
EFSEC Washington Energy Facility Site Evaluation Council
EIS Environmental Impact Statement
FCRTS Federal Columbia River Transmission System
FEIS Final Environmental Impact Statement
MW Megawatt
NEPA National Environmental Policy Act
ROD Record of Decision
SCA Site Certification Agreement
SEIS Supplemental Environmental Impact Statement
SEPA Washington State Environmental Policy Act
TAC Technical Advisory Committee
WTG Wind Turbine Generator
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STATEMENT OF JURISDICTION
The Court has original jurisdiction over this petition under 16 U.S.C. §
839f(e)(5). Petitioners Friends of the Columbia Gorge and Save Our Scenic Area
(collectively “Friends”) seek review of the Bonneville Power Administration’s
(“BPA”) June 24, 2015 Record of Decision (“ROD”) approving the
interconnection of the Whistling Ridge Energy Project (the “Project”) with the
BPA’s electricity transmission system, based on BPA’s analysis under the National
Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–47. Excerpts of Record
(“ER”) 1–40 (ROD); 191–355 (excerpts of Final Environmental Impact Statement
(“FEIS”)). Friends further seeks review of BPA’s June 15, 2015 Supplement
Analysis for the Whistling Ridge Energy Project Final Environmental Impact
Statement in which BPA determined not to prepare additional NEPA
documentation. ER 41–55. Friends timely filed the petition on September 9, 2015,
within 90 days of the challenged decisions. 16 U.S.C. § 839f(e)(5).
Friends of the Columbia Gorge is a nonprofit public interest organization
dedicated to protecting and enhancing the resources of the Columbia River Gorge
National Scenic Area and its environs. ER 619. Save Our Scenic Area is a
grassroots community organization incorporated in 2007 in response to the
proposed Project. ER 617, 648. The Declarations of Thomas J. Drach, Ralph
Thomas Rogers, and Jozsef Urmos, filed concurrently with this brief, demonstrate
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that Petitioners have standing. See Nw. Envtl. Def. Ctr. v. BPA, 117 F.3d 1520,
1527–30 (9th Cir. 1997) (petitioners may submit declarations with briefing to
demonstrate standing). Both Petitioners also commented extensively over the past
six years regarding BPA’s interconnection decision and the Project’s impacts. See
ER 56–77 (excerpts of Index to Administrative Record).
ISSUES PRESENTED FOR REVIEW
1. Whether BPA violated NEPA by approving the ROD based on an FEIS
that analyzed only the proposed action—which did not specify the actual
number, output capacities, or locations of wind turbines within the
Project site—and the no-action alternative.
2. Whether BPA violated NEPA by approving the ROD based on an FEIS
that did not analyze the effectiveness of proposed mitigation.
3. Whether BPA violated NEPA by approving the ROD based on an FEIS
that did not take a hard look at the Project’s harmful effects on birds and
bats.
4. Whether BPA violated NEPA when it decided not to prepare a
Supplemental Environmental Impact Statement (“SEIS”) despite
substantial changes to the Project and a need to update stale wildlife
survey data.
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STATEMENT OF THE CASE
The Columbia River Gorge, located on the border of Oregon and
Washington, is home to spectacular landscapes, sheer cliffs, mountains that rise
nearly a mile into the air, and rare plants and wildlife. The rare beauty of the Gorge
draws two million visitors each year to enjoy its spectacular scenery. In 1986,
Congress enacted the Columbia River Gorge National Scenic Area Act. 16 U.S.C.
§§ 544–544p. The Act created the Columbia River Gorge National Scenic Area to
protect and enhance the scenic, natural, cultural, and recreational resources of the
Columbia River Gorge and to allow carefully restricted economic development
consistent with resource protection within the Scenic Area’s boundaries.
In 2003, the Whistling Ridge Energy Project was proposed to be built
immediately adjacent to the Scenic Area’s northern boundary, directly across the
Columbia River from the City of Hood River, Oregon. The Project’s wind turbines
would tower over the Gorge’s northern escarpment, visible for miles in each
direction along the Columbia River. The Project is proposed as an indeterminate
combination of up to 50 wind turbines, each varying from 1.2 to 2.5 megawatts
(“MW”) in generating capacity, for a total of 70 to 75 MW of capacity, with the
turbines to be sited in an as-yet-undefined configuration within eight potential
corridors on private forest lands adjacent to the Scenic Area.
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In 2009, Whistling Ridge Energy, LLC (the “Applicant”), filed an
application with the State of Washington’s Energy Facility Site Evaluation Council
(“EFSEC”) requesting a Site Certification Agreement (“SCA”) from EFSEC and
the Governor of Washington under state facility siting law. Because the Project
would be worthless unless it could transmit its power, the Applicant also applied to
BPA, which operates the largest energy transmission grid in the Pacific Northwest,
for an agreement allowing the Project to interconnect to that grid. BPA had to
decide whether to grant the interconnection based on an analysis under NEPA of
the harm the Project might cause to the environment.
The record confirms that the Applicant never attempted to determine the
exact number, capacities, or configurations of the wind turbines to meet the
Project’s 70- to 75-MW capacity goal. Rather, the Applicant sought approval of
the project’s general contours first, with details to follow later. EFSEC and the
Governor determined that state law allowed approval of such an indeterminate
project subject to numerous conditions, including 26 mitigation plans to be
developed later—but also cut 15 turbines from Applicant’s proposal, eliminating
three potential turbine corridors and authorizing no more than 35 turbines.
But NEPA requires a much different analysis. NEPA’s goals of public
disclosure and informed, democratic decisionmaking require federal agencies to
prepare detailed evaluations of all reasonable alternatives to sharply define issues
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and allow the public, as well as decisionmakers, to compare the different
environmental effects of the distinct alternatives to the proposed action. Agencies
must also evaluate whether proposed mitigation to reduce the action’s harmful
effects actually will be effective in doing so. And NEPA requires agencies to
gather and disclose relevant data and take a “hard look” at a project’s potential
harm, and to supplement an FEIS when there are significant changes to the project
or significant new information about environmental concerns.
The BPA’s FEIS for the Project satisfies none of these requirements. Rather
than develop and study alternatives that would allow the comparisons NEPA
requires, the agency accepted the developer’s proposal—with its range of up to 50
turbines, each with a 1.2- to 2.5-MW capacity, to be sited at yet-to-be-determined
locations in a yet-to-be determined configuration—as the only action alternative.
Because of the indeterminate nature of the proposed action, BPA and the Applicant
evaluated the Project under a “worst-case scenario,” depriving the public and
decisionmakers of the rigorous alternatives analysis meant to be the heart of NEPA
review.
The FEIS lists a series of mitigation measures, most with the qualification
that they will be undertaken “to the extent feasible” or, like the 26 mitigation plans
required by EFSEC, to be developed at some unspecified time in the future. The
FEIS also omits basic information about birds and bats, including data regarding
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local avian population abundance and any evaluation of potential harm to bats
from barotrauma, the leading cause of bat mortality at industrial-scale wind
projects.
Although NEPA mandates no substantive outcome, its detailed procedures
are meant to foster excellent decisions and informed public participation to
minimize or eliminate harm to the environment. BPA’s failure to comply with
fundamental tenets of NEPA precluded an informed decision, and its ultimate
decision to approve the interconnection of the Project to its transmission grid was
arbitrary, capricious, and not in accordance with NEPA.
STATEMENT OF THE RELEVANT FACTS
I. THE WHISTLING RIDGE ENERGY PROJECT
A. The Evolution of the Project and the Application to the Washington Energy Facility Site Evaluation Council
From its inception, the Project’s details have been amorphous and
speculative, and that remains true to this day. The Project had its genesis sometime
in 2003, when PPM Energy applied for interconnection with BPA’s transmission
grid for the proposed 70-MW “SDS Underwood Wind Generation Project.” ER
653. In August 2006, PPM assigned the application to a subsidiary of SDS Lumber
Company, which owns the forested lands where the Project would be built, and the
Project was renamed the Saddleback Wind Project. ER 650, 239. In March 2009,
the SDS Lumber subsidiary—by then known as Whistling Ridge Energy LLC—
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filed an application with the Washington EFSEC requesting site certification for
the again-renamed Whistling Ridge Energy Project, described as an
“approximately 75-megawatt” facility. ER 358, 363. In October 2009 the
Applicant made minor revisions to its application. ER 360–61.
In its 2003 incarnation, the Project involved “approximately 48 wind
turbines on private forestland, generating up to 86 MW of electric output.” ER 652.
The earliest BPA analysis of a potential interconnection, in August 2007,
considered a proposal by the Applicant for 70 MW of output capacity using 1.8-
MW turbines, with the Project “modeled as an aggregation of 39 such units.” ER
649. The October 2009 revised application to EFSEC requested approval of an
“approximately 75-megawatt” facility on a 1,152-acre site where “[a]pproximately
fifty 1.2 to 2.5 MW wind turbine generators would be placed on the site and
connected to BPA’s existing . . . transmission line.” ER 363–64.
The proposed Project site lies in the heart of the Columbia River Gorge,
where the Columbia River Gorge National Scenic Area bisects the Cascade
Mountain Range. Many of the proposed turbines would be sited immediately
adjacent to and highly visible from the National Scenic Area, which Congress
protected in 1986 for its aesthetic, biological, historic, and recreational values. ER
620. Opportunities abound for hiking, birdwatching, wildflower viewing, and
appreciation of the majestic beauty of the Gorge’s side canyons, ridgetops, and
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river corridor. ER 620–21. The Scenic Area has preserved the scenery along the
Columbia River by tightly restricting new development within the Scenic Area
itself. Because the Project would be visible from many communities within the
Scenic Area, hundreds of local residents oppose the Project. ER 621–22.
The application was prepared for EFSEC’s review under state law governing
the required contents of an energy facility siting application. ER 95, 113. The
application’s “Project Overview” reiterated that the facility would generate “up to
75 [MW] of electricity” from “up to fifty 1.2- to 2.5-MW wind turbines,” and
would also include collector lines, an operations and maintenance facility, new and
improved roads, and a new substation to connect the Project to the grid. ER 379.
The proposal deferred the final number, output capacities, and actual
locations of wind turbines to a process called “micrositing,” to be undertaken after
the Project received State approval. ER 378. Because it did not plan to determine
the actual locations and number of turbines until after the state approved the
Project, the Applicant asked EFSEC to approve eight turbine “corridors,” each 650
feet wide and up to a mile and half long, plus narrower corridors for roads,
electrical lines, and other infrastructure. ER 378, 380 (map in EFSEC application
showing proposed turbine corridors and other Project elements), 240 (Project map
in FEIS) (shown on next page).
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ER 240
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B. Birds, Bats, and Surveys at the Project Site
The Project would be the first large industrial-scale wind facility in a
forested environment in the Pacific Northwest, presenting a novel set of potential
impacts, to which existing information regarding bird and bat mortality at wind
projects in non-forested environments might not be transferrable. See ER 573,
623–25, 635, 638–39, 655. Several sensitive and imperiled bird species use the
Project site or nearby areas, including bald and golden eagles, both protected under
the Bald and Golden Eagle Protection Act; northern goshawks and olive-sided
flycatchers, both federal species of concern; and northern spotted owls, listed as
threatened under the federal Endangered Species Act. ER 268.
The Applicant’s consultant conducted sporadic surveys for birds, totaling
only 87 hours over three years, at the Project site. ER 383, 570. Avian surveys
occurred from September 11 to November 4, 2004, during fall migration; from
May 15 to July 14, 2006, during breeding/nesting season; and during winter and
early spring from December 4, 2008 to May 29, 2009. ER 282. Eighty-seven
species of birds were observed during these surveys.1 ER 284. Among the sensitive
species, 21 olive-sided flycatchers were observed during the summer 2006 avian
surveys, and six were recorded during the spring of 2009. ER 279. However, no
1 Two golden eagles were observed in 2004, and a total of five northern goshawk were sighted in 2004 and 2006. ER 269. Surveys specifically for northern goshawk and northern spotted owls in 2003, 2004, 2008, and 2009 detected no goshawks or owls. ER 269–76.
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bird surveys were ever conducted at the site in any year during the month of
August, which is when olive-sided flycatchers migrate south through Washington
and the Project site. ER 278–79.
At least 15 species of bats are likely to occur at the Project site, including
Townsend’s big-eared bat, a federal species of concern and a Washington State
candidate species. ER 268, 272, 289. All three bat surveys, in 2007, 2008, and
2009, lacked the ability to detect individual species of bats. ER 282, 384–86.
C. Mitigation Measures
The EFSEC application also listed potential mitigation measures. ER 368–
77. But because the number and locations of the turbines would not be determined
until later, most of the mitigation measures listed were necessarily speculative and
exhortatory. For example, the application described that the Project’s “primary
mitigation goal” for wildlife impacts “is to avoid sensitive wildlife resources when
siting turbines and access roads,” even though siting would not occur until after the
State approved site certification for the amorphous Project. ER 372. All other
wildlife mitigation measures would be developed after Project approval, including
conducting “thorough analysis of sensitive natural resources to avoid impacts and
increase avoidance during micrositing,” implementing “a two year minimum post-
construction mortality study,” and convening a Technical Advisory Committee to
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recommend a post-construction monitoring plan at some indeterminate future time.
ER 372–73.
The sole measure proposed to mitigate the Project’s harm to aesthetics and
scenic views in the Columbia River Gorge was to paint the turbines a flat grey
color. ER 376.
II. ENVIRONMENTAL REVIEW AND SITE CERTIFICATION
A. The Draft Environmental Impact Statement Because the Project required an interconnection to BPA’s electrical
transmission grid, BPA prepared an Environmental Impact Statement (“EIS”)
under NEPA to evaluate the effects of the federal action and the related private
development. EFSEC served as a cooperating agency for the environmental
review, given EFSEC’s obligations under the Washington State Environmental
Policy Act (“SEPA”). ER 192, 202. BPA and EFSEC issued the Draft EIS
(“DEIS”) for public comment in May 2010. ER 192.2
BPA’s purpose and need statement identified that it owns and operates the
Federal Columbia River Transmission System, a power transmission grid
consisting of more than 15,000 miles of high-voltage lines that moves most of the
2 The August 2011 FEIS indicated all changes from the DEIS by showing new or revised text in red underlined font and deleted text crossed out with a solid black strike-through. ER 193. Because the few changes between the DEIS and the FEIS can be identified unambiguously this way, only excerpts of the FEIS are included in the ER.
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power from Pacific Northwest generating facilities to power consumers, and that it
needed to act on the Applicant’s interconnection request. ER 205. BPA considers
four purposes in deciding whether or not to grant such request, including its
obligation to “[a]ct consistently with BPA’s environmental and social
responsibilities.” Id. BPA’s “decision on whether or not to [approve an
interconnection request is] subject to environmental review under NEPA.” Id.
EFSEC’s purpose and need was to review and act on the site certification
application, while the Applicant-identified needs included providing a new
regional source of renewable energy with a capacity of approximately 75 MW on a
site the Applicant owned to diversify its logging and lumber business. ER 204–08.
During the NEPA scoping process, BPA received over 550 written and
verbal comments asking the agency to consider alternatives for the Project that
would remove multiple turbines—including an alternative that would move or
eliminate all turbines visible from the National Scenic Area, which was
recommended by the U.S. Forest Service’s National Scenic Area office and the
National Park Service. ER 642, 628, 631–32. The DEIS, however, defined only
two alternatives for evaluation: a proposed action—the same vaguely described
proposal in the EFSEC application—and a no-action alternative. ER 210–14. The
proposed action “would consist of up to 50 wind turbine generators, each of which
would likely range in size from 1.2 to 2.5 MW.” ER 211. The turbines “would be
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up to approximately 426 feet tall,” and would be grouped in “strings” spaced
approximately 350 to 500 or 800 feet apart. ER 329 (“Turbine ‘strings’ would
include rows of from three to 21 turbines placed at approximately 350 to 500 foot
intervals.”), ER 211 (describing spacing as “350 to 800 feet”). The DEIS included
a map showing the same eight, 650-foot-wide potential turbine corridors shown in
the EFSEC application. ER 240, 380.
The Project would have “a minimum of 70 MW nameplate capacity” and “a
total nameplate capacity of up to 75 MW.” 3 ER 210. The Applicant contended that
only a project with a nameplate capacity of 70 to 75 MW would provide it with a
return on investment. ER 252. Depending on the size(s) of turbines selected, the
diameter of the circle sweep of the rotor blades would be “approximately 264 to
320 feet.” ER 211. The proposed action would include BPA granting the requested
interconnection. ER 238.
The only other action evaluated in detail was the no-action alternative, under
which the Project would not be built and no interconnection would be granted. ER
213. BPA considered, but eliminated from detailed study, alternate sites for the
proposed Project, project sizes larger or smaller than 70 to 75 MW, alternative
wind-generating technologies, alternative interconnections, alternative access
3 “Nameplate capacity” refers to the maximum capacity of a facility to generate electricity if it were operated at 100% capacity. See ER 595. Because wind does not blow constantly, the Project’s true energy output would be much lower, perhaps only 25-35% of nameplate capacity. ER 435.
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roads, and, somewhat inexplicably—because no specific project configuration had
been proposed—alternative project configurations. ER 250–54.
The DEIS described the Applicant’s avian and bat surveys in detail, see ER
266–90, and also discussed the Project’s potential harm to birds and bats, including
special status species. ER 293–99. The DEIS’s section on scenic resources, which
included visual simulations based on a hypothetical 50-turbine layout, described
potential effects on scenic views from several vantage points in and near the Scenic
Area by listing existing visual quality, viewer sensitivity, and level of visual
impact on a subjective scale from low to high. ER 322, 329, 332–45; see ER 440
(BPA response to comment stating that “[i]nterpretation and conclusions on the
degree of visual impact are subjective and dependent upon the viewer”).
For each affected resource, the DEIS also provided a more extensive list of
mitigation measures than in the EFSEC application, but which would be
implemented only “where feasible,” and then only “to the extent feasible” or based
on plans to be prepared at some unspecified point in the future (or both). ER 192,
258–65, 301–07, 309–10, 350–55. The DEIS also listed mitigation measures in the
right-most column in Table 1-1. ER 219–30. None of these lists described which
mitigation measures are actually feasible, nor why or why not. Nor did any of the
lists evaluate whether any of the measures would effectively mitigate likely harm.
//
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B. The EFSEC Administrative Process
In June 2009, about a year before the DEIS was released for comment,
EFSEC began its adjudication of whether the site certification application
complied with the substance of the Washington energy facility siting statute and
related regulations. ER 7. After more than a year of discovery, prehearing
conferences, and extensive evidentiary submissions, EFSEC held an adjudicative
hearing in January 2011. ER 506. The NEPA/SEPA review and the adequacy of
the FEIS were explicitly excluded from EFSEC’s adjudication. ER 185–86.
Among its evidence for the hearing, the Applicant submitted corrected versions of
its visual simulations of the hypothetical 50-turbine layout. ER 544–64.
At the January 2011 hearing, the Applicant’s President, Jason Spadaro,
reiterated to the Council that “we are not seeking to permit turbine locations,” but
that the maps in the application instead showed “a hypothetical layout in a worst-
case scenario which is 50 turbines totaling 75 megawatts. We’re seeking to permit
corridors . . . .” ER 517. Mr. Spadaro then stipulated to EFSEC “that 2-megawatt
machines or larger would be used for this project.” ER 518. “By going with 2-
megawatt or larger machines we now have the option of going [with] fewer
turbines with a maximum of 38 instead [of] 50.” ER 519. Turbine corridors E and
F would be eliminated, “and then the 38 turbines would be scattered among the
remaining corridors.” Id.
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Mr. Spadaro also testified that the Applicant had made no attempt to identify
what output capacities of turbines might work at the Project site. When asked “Is
there any reason why a 2.5-megawatt turbine or a 3-megawatt turbine could not be
located on this site physically?” Mr. Spadaro responded “Depending upon the
turbine design specifications there could be limitations that prevent larger
machines from being offered by a particular vendor being suitable for our site.” ER
522. But pressed with the question “Have you specifically gone out and shopped
these around and looked at what is available in the marketplace?” Mr. Spadaro
admitted that “we have not sought turbine supply quotes yet.” ER 523. He
acknowledged that “You can get 2-megawatt turbines with varying hub heights and
blade diameters.” Id.
In response to whether he had “examined in your review of available turbine
sizes, the size of the turbine’s hub height, the maximum tip at the end of the
blade?” and “Have you reviewed the various sizes that would be required for those
turbines?” Mr. Spadaro acknowledged that “we have not tried to micro-site our
project and determine the most suitable wind turbine. It all depends, is dependent
upon what we are able to get approved.” ER 524. Asked if he was aware that the
Windy Point/Windy Flats wind project in neighboring Klickitat County,
Washington, had just come online with 2.3-MW turbines, Mr. Spadaro conceded
that he “was not aware of that.” ER 522. He later reiterated that the Applicant’s
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“modeling of visual impact and other impacts assumed 50 turbines in a worst-case
scenario.” ER 499. The Applicant’s counsel went further, frankly admitting that
the 50-turbine worst-case scenario “is never going to be built” and urging EFSEC
to “just simply look at the visual simulations if you want and imagine a lot less
turbines, and that’s sufficient information for consideration of the project.” ER
491.
Mr. Spadaro also acknowledged that “Fewer larger turbines [are] going to
not have as much impact as more numerous smaller turbines.” ER 532. This
corroborated the earlier testimony of a Seattle Audubon Society representative
who—after noting the lack of specifics about the number, capacities, and locations
of the turbines—observed that “there is a way to reduce [the 50-turbine proposal]
and still produce the same amount of power. And if you did that, you could
potentially avoid some of the impacts.” ER 509.
C. The Final Environmental Impact Statement While the EFSEC adjudication proceeded, BPA accepted comments on the
DEIS until August 27, 2010. ER 218. The summary of public comments and
BPA’s responses (in Exhibit G to the FEIS) covers 684 pages. ER 66. The theme
of many comments was the same: the public repeatedly asked the agency to
evaluate alternative Project configurations with fewer turbines—including
configurations that eliminated turbines that would damage the scenic values of the
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adjacent National Scenic Area—to allow a comparison of the relative harms from
different permutations of the proposed Project. See, e.g., ER 428–29 (describing
other projects that had reduced the number of turbines without changing nameplate
capacity), 432 (“We strongly recommend removing Turbine Corridors A-1 through
A-7 from further project consideration. Visual impacts will seriously degrade core
scenic and historic landscape values.”), 434 (asking BPA “to analyze and compare
to see if a smaller size or different configuration might be less harmful to
wildlife”). Washington’s Counsel for the Environment4 similarly requested
detailed consideration of a range of alternative turbine configurations. ER 596–97.
BPA and EFSEC issued the FEIS in August 2011, one year after the public
comment period closed. ER 191–92. Despite the Applicant’s stipulation to EFSEC
in January 2011 that the minimum turbine capacity would be 2.0 MW with a
maximum of 38 turbines, ER 518–19, the FEIS made no changes from the DEIS’s
description of the Project as consisting of “up to 50” turbines that would “likely”
range from 1.2- to 2.5-MW, still with a nameplate capacity between 70 and 75
MW. ER 192, 210–11. The turbines would still be grouped within the same eight
potential corridors, spaced approximately 350 to 500 or 800 feet apart. ER 211,
240, 329.
4 The Counsel for the Environment is a Washington State assistant attorney general appointed to “represent the public and its interest in protecting the quality of the environment” before EFSEC. Wash. Rev. Code § 80.50.080.
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BPA forthrightly admitted that “[t]he EIS includes analysis of the proposed
alternatives that were developed by the applicant. No additional alternatives were
developed for analysis.” ER 434. The FEIS ignored the Applicant’s stipulation and
retained a fictitious single action alternative, defined in terms of variables which
the developer itself had represented no longer were true. ER 211, 518–19.
However, the FEIS did add a new variable to the description of the proposed
action: “turbines throughout the Project would all be the same model, although
height may vary in response to terrain.” ER 211. This means, mathematically, that
the Project could have as few as 38 2.0-MW turbines, 33 of the 2.3-MW turbines
recently installed at the nearby Windy Point/Windy Flats project, 30 2.5-MW
turbines, or 25 3.0-MW turbines, all of which were already commercially
available. ER 522. Each of these alternatives would still accommodate the
Project’s desired maximum 75-MW capacity.
In the FEIS and in its response to public comments, BPA repeatedly
emphasized that it was considering only the “worst case scenario” in evaluating all
potential impacts, echoing the Applicant’s testimony to EFSEC. See ER 436–37
(discussing “worst case” modeling for noise effects), 439 (describing that visual
simulations “were used to present worst case scenarios so that impacts could be
fully evaluated regardless of lighting condition”), 441–42 (“The EIS analyzes the
impacts of a project that would occur within a wind turbine siting corridor and the
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analysis conducted assumes the worst case scenario of turbine placement so that
the greatest potential project impacts can be analyzed.”), 444 (“The visual impact
analysis analyzes the worst case scenario using the tallest possible turbines at the
most visible locations”).
No new wildlife studies were completed for the FEIS, and only minimal
changes were made to the wildlife sections of the DEIS. ER 266–300. Similarly,
the FEIS contained the same lists of mitigation measures as the DEIS, still stating
that these measures would only be implemented “to the extent feasible” or via
mitigation plans that would be developed sometime in the future. ER 192, 219–30,
258–65, 301–07, 309–10, 350–55. The FEIS also did not include the corrected
versions of the visual simulations the Applicant had provided to EFSEC during the
adjudication. Compare ER 332–45 with ER 544–64.
D. The Site Certification Agreement and State Court Litigation
After several rounds of post-hearing briefing, EFSEC issued two Orders on
October 6, 2011, resolving all contested issues in the adjudication and
recommending to the Governor that she approve in part and deny in part the
Project, subject to the conditions set out in the Orders and the draft SCA. ER 174.
After evaluating different options for reducing visual impacts, EFSEC
recommended denying 15 of the proposed 50 possible turbines (eliminating
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corridors A1 to A7, C1 to C4, and C5 to C8). ER 173 (SCA attachment providing a
“Viewing Site Analysis” and identifying removed turbines).
EFSEC’s draft SCA required the Applicant to prepare 26 different
mitigation plans in the future—some as late as 60 days before the Applicant began
clearing or grading the site, and others as late as 60 to 120 days before beginning
commercial operation—covering issues ranging from stormwater management, to
monitoring bird and bat deaths, to site restoration. ER 143–68. It also specified a
few additional mitigation measures, such as an exhortation to implement undefined
“appropriate operational BMPs [Best Management Practices] to minimize impacts
to plants and animals,” and an obligation to conduct another pre-construction
survey for bats during their migration period. ER 164.
EFSEC’s Adjudicative Order indicated that it “provides mitigation measures
through specific one-time requirements, long-term obligations, and ongoing
study,” and listed a series of measures it intended to incorporate into the SCA. ER
189. This included a provision for “[m]itigation through micrositing; avoid as
practical turbine locations that separate nesting areas from food gathering areas;
avoid flight paths; consider other factors as identified by the TAC [Technical
Advisory Committee]. Mitigation as well from study of post-construction surveys.”
ER 190 (emphasis added).
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On March 5, 2012, Governor Gregoire approved and executed the SCA. ER
170. Friends challenged EFSEC’s Orders and the Governor’s decision in state
court, arguing that their decisions violated Washington’s Energy Facilities Site
Locations Act, Wash. Rev. Code Chapter 80.50, and the Act’s implementing
regulations, which govern the contents of a site certification application and how
EFSEC must evaluate it. ER 104–05. The adequacy of the FEIS was not an issue in
the state court proceedings. Id. & 104 n.5.
In August 2013, the Washington Supreme Court unanimously held that
EFSEC and the Governor had satisfied state statutory and regulatory requirements
for siting energy projects and upheld their decisions approving and executing the
SCA. ER 105–26. The Washington Supreme Court found that EFSEC had
sufficiently considered the Washington Department of Fish & Wildlife’s Wind
Energy Guidelines and had satisfied state regulations involving nighttime avian
collisions and wildlife mitigation measures. ER 110–14. It also determined that the
Applicant’s avian surveys satisfied the state regulatory requirements for surveys
“during all seasons of the year.” ER 116–17. In upholding the adequacy of the
surveys, the state supreme court noted that, “[i]f, for example, an unexpectedly
large number of olive-sided flycatcher mortalities occur, [the Applicant] might be
required to implement additional mitigation measures.” ER 116. It acknowledged
that the EFSEC application “did not fully detail the mitigation measures,” but
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upheld EFSEC’s conclusion that the limited discussion complied with state
regulations. ER 113.
III. BPA’S APPROVAL OF THE INTERCONNECTION A. BPA’s Supplement Analysis Friends and other commenters submitted nine sets of post-FEIS comments to
BPA between August 2011 and March 2015, highlighting new information about
the Project’s impacts and imploring the agency to prepare a supplemental NEPA
analysis. ER 20–34, 57–65. On June 15, 2015, BPA issued a Supplement Analysis
announcing its conclusions “whether there have been substantial changes to the
proposal or significant new circumstances or information relevant to environmental
concerns since completion of the Final EIS.” ER 41. The Supplement Analysis first
evaluated the State’s decision to limit the Project to a maximum of 35 turbines and
asserted that this change to the Project was “within the spectrum of alternatives
considered,” or, in the alternative, did not represent a significant change in the
Project relevant to environmental concerns nor “result in substantially different
impacts from those described in the Final EIS.” ER 42–43.
The Supplement Analysis then evaluated information collected since the
August 2011 FEIS, ER 44–52, ultimately determining that no further NEPA
documentation was required. ER 52.
//
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B. BPA’s Record of Decision On June 24, 2015, BPA issued its ROD, approving the Project’s
interconnection to BPA’s transmission grid. ER 1. BPA noted it “does not have
siting authority or regulatory jurisdiction” over the Project’s facilities. ER 3. It then
purported to provide a “summary of the alternatives that were considered in detail
in the EIS,” but instead described the Project as consisting of “up to 35 wind
turbines, each ranging from 1.2 to 2.5 MW in generating capacity”—an alternative
that was never described in the FEIS. ER 11–12; see ER 210–11. The ROD
acknowledged the State’s decision to deny 15 turbines. ER 13.
Despite the fact that nearly all Project details and mitigation measures have
yet to be developed, BPA asserted that existing information was sufficient to
analyze the Project’s environmental impacts. ER 28. Similarly, despite the failure
to disclose wildlife mitigation measures, quantify likely bird and bat mortality,
evaluate the relative abundance of sensitive-status species, and evaluate critical
information on impacts to bats, BPA asserted that the FEIS provided “sufficient
consideration and analyses of these areas to meet the requirements of NEPA.” Id.
BPA then provided its rationale for approving the interconnection. ER 34–
40. First, “BPA considered how well each alternative under consideration—the
Proposed Action alternative and the No Action alternative—would fit with BPA’s
statutory missions and relevant policies and procedures. BPA also considered the
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environmental impacts described in the Final EIS” and “the extent to which each
alternative under construction would meet” the BPA purposes identified in the
FEIS, including BPA’s purpose to “[a]ct consistently with [its] environmental and
social responsibilities.” ER 34–35.
With respect to the former, BPA explained that the Applicant attempted to
minimize environmental harm “where possible” and that “EFSEC and BPA have
identified numerous mitigation measures in the Final EIS to further reduce, avoid,
or compensate for Project impacts,” measures which were “included as conditions
in the Final SCA for the Wind Project that EFSEC has found will ensure that the
Project will produce minimal adverse environmental impacts.” ER 37. BPA
concluded that it had carried out its NEPA responsibilities, basing this conclusion
on “the extensive mitigation measures that have been identified and SCA
conditions that have been imposed.” ER 38. Finally, BPA asserted that “[a]ll the
mitigation measures described in the Draft EIS and updated in the Final EIS have
been adopted,” adding that a “complete list of these measures can be found in the
[June 2015] Mitigation Action Plan.” ER 40; ER 78–91.
//
//
//
//
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SUMMARY OF THE ARGUMENT
BPA violated NEPA by considering only the worst-case scenario of a single
action alternative that was improperly defined as some indeterminate number of
wind turbines, of uncertain capacity from 1.2 to 2.5 MW each, to be located
anywhere within some or all of eight scattered corridors on the 1,152-acre Project
site. An agency must develop and study in detail every reasonable alternative to a
proposed action to allow the public and decisionmakers to compare the effects of
alternative proposals and to sharply define the different levels of environmental
harm that could flow from different alternatives. BPA ignored alternative
configurations of 38, 35, 33, 30, and 25 turbines that could still have
accommodated the Project’s goal of 70- to 75-MW total capacity. This
fundamental failure thwarted NEPA’s purposes to promote informed public
participation and foster informed, democratic decisionmaking, and infected the rest
of the FEIS’s analysis.
BPA included lists of mitigation measures in the FEIS that are required only
“to the extent feasible” or that are deferred until a mitigation plan is developed in
the distant future. But BPA nowhere evaluated whether these inchoate mitigation
measures actually will be effective in reducing or preventing environmental harm,
as NEPA requires. The FEIS failed to disclose baseline information regarding local
avian population abundance, yet arbitrarily concluded that the Project will not
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negatively impact local populations. The FEIS also included an incomplete and
misleading evaluation of potential impacts to the olive-sided flycatcher, a federal
species of concern, and omits any discussion of barotrauma, the leading cause of
bat deaths at industrial-scale wind projects.
BPA’s decision to approve the interconnection, dependent as it was on the
FEIS’s flawed alternatives analysis, unevaluated mitigation measures, and
inadequate evaluation of potential harm to birds and bats, was arbitrary, capricious,
and in violation of NEPA. Because the information in the FEIS was so incomplete
and misleading that the public and decisionmakers could not make an informed
comparison among alternatives, because there have been significant changes to the
Project, and because the wildlife survey data underlying the EIS is stale, BPA must
prepare a supplemental EIS to reevaluate its decision to allow the Project’s
interconnection.
ARGUMENT
I. STANDARD OF REVIEW This Court’s review of BPA’s decisions and its compliance with NEPA are
reviewed under the judicial review provisions of the Administrative Procedure Act
(“APA”). 16 U.S.C. § 839f(e)(2) (incorporating APA scope of review provision);
Portland Gen. Elec. v. BPA, 501 F.3d 1009, 1025 (9th Cir. 2007). Under the APA,
a court “shall . . . hold unlawful and set aside agency action, findings and
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conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or not
otherwise in accordance with law . . . [or] . . . without observance of procedure
required by law.” 5 U.S.C. §§ 706(2)(A), (D); Ass’n of Pub. Agency Customers,
Inc. v. BPA, 126 F.3d 1158, 1183 (9th Cir 1997) (applying “‘arbitrary and
capricious’ standard” to review of BPA ROD and associated NEPA analysis). A
decision is arbitrary and capricious if the agency “relied on factors which Congress
has not intended it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
The APA standard of review is “narrow” and “deferential,” but also requires
the Court to undertake “an inquiry into the facts [that is] searching and careful.”
Sierra Club v. Bosworth, 510 F.3d 1016, 1022 (9th Cir. 2007) (internal quotation
omitted). Courts afford deference to agency decisions that are well-reasoned,
adequately explained, and supported by the facts before the agency, but will reject
poorly reasoned or factually unsupported agency actions. See id. at 1023 (“We will
defer to an agency’s decision only if it is fully informed and well-considered, and
we will disapprove of an agency’s decision if it made a clear error of judgment.”
(internal quotation and citations omitted)).
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No deference is due to agency conclusions or decisions that lack factual
corroboration in the record. Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d
989, 996 (9th Cir. 2004) (“[W]hile the conclusions of agency experts are surely
entitled to deference, NEPA documents are inadequate if they contain only
narratives of expert opinions.”). Nor is deference due if a decision is not complete,
reasoned, and adequately explained, because the “keystone” of a court’s review “is
to ensure that the [agency] engaged in reasoned decisionmaking,” and “where the
agency’s reasoning is irrational, unclear, or not supported by the data it purports to
interpret, [the Court] must disapprove the agency’s action.” Nw. Coal. for Alts. to
Pesticides v. EPA, 544 F.3d 1043, 1052 n.7 (9th Cir. 2008) (quotation omitted).
II. THE NATIONAL ENVIRONMENTAL POLICY ACT
A. Purposes of NEPA
1. Disclosure of Environmental Impacts and Informed Decisionmaking
NEPA directs all federal agencies, to the fullest extent possible, to prepare,
consider, and adopt an EIS whenever they consider “major federal actions
significantly affecting the quality of the environment.” 42 U.S.C. § 4332(2)(C); 40
C.F.R. §§ 1501.4(a)(1), 1508.9. NEPA “declares a broad national commitment to
protecting and promoting environmental quality.” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 348 (1989); see 42 U.S.C. § 4331. NEPA does not
mandate particular substantive results; rather, Congress intended that NEPA should
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“prevent or eliminate damage to the environment and biosphere by focusing
government and public attention on the environmental effects of proposed agency
action.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989).
Environmental review under NEPA “ensures that the agency, in reaching its
decision, will have available, and will carefully consider, detailed information
concerning significant environmental impacts,” and “guarantees that the relevant
information will be made available to the larger audience that may also play a role
in both the decisionmaking process and the implementation of that decision.”
Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004) (internal citations and
alteration omitted). By focusing attention on the environmental consequences of a
proposed action, NEPA “ensures that important effects will not be overlooked or
underestimated only to be discovered after resources have been committed and the
die otherwise cast.” Robertson, 490 U.S. at 349.
NEPA’s disclosure goals are two-fold: (1) to ensure the agency has carefully
and fully contemplated the environmental effects of its action, and (2) “to ensure
that the public has sufficient information to challenge the agency.” Id.; see also
Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1151 (9th Cir. 1998). In short,
NEPA ensures an agency will not act on incomplete information, only to regret its
decision after it is too late to correct. Or. Natural Res. Council Fund v. Brong, 492
F.3d 1120, 1132 (9th Cir. 2007).
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2. Democratic Decisionmaking
NEPA works “through the creation of a democratic decisionmaking structure
that, although strictly procedural, is almost certain to affect the agency’s
substantive decision[s].” Or. Natural Desert Ass’n v. BLM, 625 F.3d 1092, 1099
(9th Cir. 2010) (quotation omitted). An agency’s obligation under NEPA to
disclose information about environmental impacts, and to obtain feedback from the
public that will lead to an informed agency decision, are central to this democratic
decisionmaking. Id. at 1121 n.24. To effectuate this basic principle, an agency is
obligated “to make available to the public high quality information . . . before
decisions are made and actions are taken.” W. Watersheds Project v. Kraayenbrink,
632 F.3d 472, 492 (9th Cir. 2011).
NEPA’s implementing regulations instruct agencies that “public scrutiny [is]
essential,” 40 C.F.R. § 1500.1(b), and charge them to “encourage and facilitate
public involvement in decisions,” id. § 1500.2(d), so that “environmental
information is available to public officials and citizens before decisions are made.”
Id. § 1500.1(b). By requiring agencies “to place their data and conclusions before
the public . . . NEPA relies upon democratic processes to ensure . . . the most
intelligent, optimally beneficial decision will ultimately be made.’” Or. Natural
Desert Ass’n, 625 F.3d. at 1099–1100 (quotation omitted). This process, in turn,
requires open, honest and public discussion “in the service of sound
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decisionmaking.” Id. at 1122. An agency’s compliance with NEPA’s strict
procedural requirements prevents uninformed agency action. Robertson, 490 U.S.
at 351.
B. Alternatives, Mitigation, and the Hard Look As a general proposition, an EIS must present the public and decisionmakers
with a “reasonably thorough discussion of the significant aspects of the probable
environmental consequences” of the agency’s decision. Trout Unlimited v. Morton,
509 F.2d 1276, 1283 (9th Cir. 1974). But an EIS also must satisfy specific
procedural standards in analyzing reasonable alternatives and evaluating mitigation
measures; otherwise, a decision relying on a flawed EIS is arbitrary and capricious.
“The adequacy of an EIS depends upon whether it was prepared in observance of
the procedure required by law.” Cal. v. Block, 690 F.2d 753, 761 (9th Cir. 1982)
(citing 5 U.S.C. § 706(2)(D)).
The analysis of alternatives is “the heart of the environmental impact
statement.” 40 C.F.R. § 1502.14. An EIS must include a detailed statement of
alternatives to the proposed action and must “study, develop, and describe
appropriate alternatives to recommended courses of action in any proposal which
involves unresolved conflicts concerning alternative uses of available resources.”
42 U.S.C. §§ 4332(2)(C)(iii), (E). It must “[r]igorously explore and objectively
evaluate all reasonable alternatives” to the proposed action. 40 C.F.R. §
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1502.14(a). “The existence of reasonable but unexamined alternatives renders an
EIS inadequate.” Friends of Southeast’s Future v. Morrison, 153 F.3d 1059, 1065
(9th Cir. 1998).
The alternatives analysis must “present the environmental impacts of the
proposal and the alternatives in comparative form, thus sharply defining the issues
and providing a clear basis for choice among options by the decisionmaker and the
public.” 40 C.F.R. § 1502.14; see Ctr. for Biol. Diversity v. U.S. Dep’t of the
Interior, 623 F.3d 633, 646 (9th Cir. 2010) (“based on the information now
reasonably available, the [agency] must make a meaningful comparison of the
environmental consequences” of different alternatives). It must “[d]evote
substantial treatment” to alternatives considered in detail “so that reviewers may
evaluate their comparative merits.” 40 C.F.R. § 1502.14(b). And the alternatives
analysis must “[i]nclude reasonable alternatives not within the jurisdiction of the
lead agency.” Id. § 1502.14(c). The scope of an alternatives analysis depends on
the goal of the proposed project, and requires evaluation of all feasible alternatives
that are reasonably related to the project’s purpose. City of Carmel-by-the-Sea v.
U.S. Dep’t. of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997).
The EIS also must discuss possible mitigation measures as a means to
“mitigate adverse environmental impacts.” 40 C.F.R. § 1502.16(h). An essential
component of an adequate mitigation discussion is an analysis of whether the
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proposed mitigation measures will be effective. S. Fork Band Council of W.
Shoshone v. U.S. Dep’t of the Interior, 588 F.3d 718, 727 (9th Cir. 2009). “A mere
listing of mitigation measures is insufficient to qualify as the reasoned discussion
required by NEPA.” Neighbors of Cuddy Mtn. v. U.S. Forest Serv., 137 F.3d 1372,
1380 (9th Cir. 1998) (citation omitted).
Throughout the NEPA process, an agency must “take[] a hard look” at the
potential environmental consequences of the proposed action.” Or. Natural Res.
Council v. BLM, 470 F.3d 818, 820 (9th Cir. 2006) (internal quotations omitted).
“The hallmarks of a ‘hard look’ are thorough investigation into environmental
impacts and forthright acknowledgment of potential environmental harms.” Nat’l
Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 185 (4th Cir. 2005).
C. Supplementation of NEPA Analyses An agency must supplement its NEPA analysis if there are “significant
changes to the proposed action that are relevant to environmental concerns” or
“significant new circumstances or information relevant to environmental concerns
and bearing on the proposed action or its impacts.” 40 C.F.R. §§ 1502.9(c)(1)(i),
(ii); see also Friends of the Clearwater v. Dombeck, 222 F.3d 552, 556–59 (9th
Cir. 2000) (An agency that has prepared an EIS “must be alert to new information
that may alter the results of its original environmental analysis.”).
BPA prepares a Supplement Analysis, as it did in this case, “[w]hen it is
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unclear whether or not an EIS supplement is required.” 10 C.F.R. § 1021.314(c).
An agency’s decision not to supplement its EIS can be upheld only if it was
reasonable. Stop H-3 Ass’n v. Dole, 740 F.2d 1442, 1464 (9th Cir. 1984).
“Reasonableness depends on the environmental significance of the new
information, the probable accuracy of the information, the degree of care with
which the agency considered the information and evaluated its impact, and the
degree to which the agency supported its decision not to supplement with a
statement of explanation or additional data.” Id.
III. BPA VIOLATED NEPA BY BASING ITS ROD ON AN FEIS THAT LACKED A REASONABLE RANGE OF ALTERNATIVES. A. NEPA Requires the Comparison of the Effects of Different
Alternatives, Not an Evaluation of a Single Broadly Stated Alternative With Many Potential Variations.
1. Evaluating only the worst-case scenario of a single,
indeterminate action alternative does not satisfy an agency’s obligation to consider all reasonable alternatives.
BPA had an obligation to “study, develop, and describe appropriate
alternatives to recommended courses of action” and “[r]igorously explore and
objectively evaluate all reasonable alternatives.” 42 U.S.C. § 4332(2)(E); 40 C.F.R.
§ 1502.14(a). However, the single action alternative stated in the FEIS—which
could involve anywhere from 28 to 50 turbines of 1.2- to 2.5-MW capacity,
arrayed anywhere within eight broad corridors, for a total capacity of 70 to 75
MW—and the FEIS’s evaluation of only a “worst case” scenario, are the antithesis
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of the sharply defined comparison among the environmental effects of reasonable
alternatives required by NEPA.
NEPA does not allow an agency to define only a single action alternative for
a site-specific project that is so indeterminate that it encompasses a multitude of
potential outcomes, unaccompanied by any actual comparisons of potential
impacts from different outcomes. The Council on Environmental Quality’s
(“CEQ”) earliest NEPA guidance explains that “[w]hen there are potentially a very
large number of alternatives,” an EIS should analyze and compare “a reasonable
number of examples, covering the full spectrum of alternatives.” Forty Most Asked
Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46
Fed. Reg. 18026, 18026 (Mar. 17, 1981). As an example of a “full spectrum,” for a
National Forest hypothetically considering whether to designate wilderness areas,
CEQ recommended that “[a]n appropriate series of alternatives might include
dedicating 0, 10, 30, 50, 70, 90 or 100 percent of the Forest to wilderness”—not a
single action alternative in which the range of wilderness would be “up to 100
percent,” plus a no-action alternative. Id.
Despite BPA’s obligations to develop alternatives to the proposed action and
consider every reasonable alternative—including ones beyond its jurisdiction—that
would achieve the Project’s power capacity goal, BPA decided to review only the
single action alternative proposed by the Applicant and develop none itself. ER
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434 (“The EIS includes analysis of the proposed alternatives that were developed
by the applicant. No additional alternatives were developed for analysis.”
(emphasis added)). But 40 C.F.R. § 1502.14 requires consideration of all
reasonable alternatives. The CEQ has underscored that, “[i]n determining the scope
of alternatives to be considered, the emphasis is on what is ‘reasonable’ rather
than on whether the proponent or applicant likes or is capable of carrying out a
particular alternative.” Forty Most Asked Questions, 46 Fed. Reg. at 18026
(emphasis added). BPA’s refusal to develop and evaluate alternatives violated
NEPA.
It also is evident that the FEIS evaluated only the “worst case scenario” of
the Project’s impacts from among the possible permutations of the single action
alternative. BPA forthrightly asserted that the “EIS analyzes the impacts of a
project that would occur within a wind turbine siting corridor and the analysis
conducted assumes the worst case scenario of turbine placement so that the
greatest potential impact can be analyzed.” ER 441–42; see discussion supra at 16–
18, 20–21. However, NEPA does not contemplate defining a single alternative
with a range of variables and then considering only a “worst case” scenario
involving the “greatest potential impact.” See Robertson, 490 U.S. at 354–56.
This Court also has rejected a NEPA analysis at the other end of the
spectrum, in which an agency supplied an analysis of only a “best case scenario”
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that assumed an arbitrarily low number for the amount of oil likely to be produced
in a proposed development in the Arctic Ocean. Native Village of Point Hope v.
Jewell, 740 F.3d 489, 504 (9th Cir. 2014). A “best case scenario ‘skew[s]’ the data
toward fewer environmental impacts, and thus impedes a ‘full and fair discussion
of the potential effects of the project’”—just as the worst case scenario here
skewed the analysis in the opposite direction. Id. (quoting Native Ecosystems
Council v. U.S. Forest Serv., 418 F.3d 953, 965 (9th Cir. 2005)). Analysis of only
one extreme or the other never complies with NEPA. By failing to satisfy its basic
obligations to evaluate alternatives and considering only a worst-case scenario,
BPA undermined the entire NEPA process.
2. BPA’s failure to evaluate the comparative impacts of a range of alternatives thwarted the fundamental purposes of NEPA.
NEPA requires an agency preparing an EIS “to make sure the proposal
which is the subject of an environmental impact statement is properly defined.” 40
C.F.R. § 1502.4(a) (emphasis added). “Clarity is at a premium in NEPA because
the statute . . . is a democratic decisionmaking tool, designed to ‘foster excellent
action’ by ‘help[ing] public officials make decisions that are based on [an]
understanding of environmental consequences.’” Or. Natural Desert Ass’n, 625
F.3d at 1121 n.24. The purposes of NEPA are to “provide full and fair discussion
of significant environmental impacts” while informing “decisionmakers and the
public of the reasonable alternatives which would avoid or minimize adverse
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impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1. An
“alternatives analysis” that considers only the worst-case scenario of a single
indeterminate action alternative cannot serve any of these fundamental purposes.
“[T]he touchstone for [the Court’s] inquiry is whether an EIS’s selection
and discussion of alternatives fosters informed decision-making and informed
public participation.” Cal. v. Block, 690 F.2d at 767. Here, BPA’s decision to
simply evaluate the worst-case scenario of the Applicant’s single, indeterminate
action alternative fostered confusion, frustration, and an inability of the public to
comment meaningfully on the DEIS. See, e.g., ER 428–29, 432, 434, 596–97
(public comments asking for more clearly defined alternatives in the FEIS). An
alternatives analysis must provide comparisons of the effects of different
alternatives, to allow commenters to “evaluate their comparative merits.” 40 C.F.R.
§ 1502.14; see also Ctr. for Biol. Diversity, 623 F.3d at 646 (agency “must make a
meaningful comparison of the environmental consequences” of different
alternatives). BPA’s decision to study a single, worst-case scenario stifled, rather
than fostered, meaningful and informed public participation.
BPA’s failure to fully evaluate the relative impacts of a range of reasonable
alternatives also prevented the agency from accomplishing the informed
decisionmaking NEPA is intended to foster. Ultimately, BPA’s decision was a
binary one—either approve or deny the interconnection. But BPA had a regulatory
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obligation to evaluate alternatives beyond its jurisdiction. 40 C.F.R. § 1502.14(c).
And it did have the option to say “no.” BPA should have conducted an actual,
legally sufficient, alternatives analysis that evaluated—with the public’s informed
assistance—the tradeoffs among the environmental impacts of various alternatives,
including different numbers, output capacities, and locations of turbines within the
Project site. See id. §§ 1502.14(a)-(c).
If BPA had conducted a legally sufficient alternatives analysis, its decision
might have been different. See Or. Natural Desert Ass’n, 625 F.3d at 1094
(“Having addressed the problems we have identified, the BLM may decide to make
different choices. NEPA is not a paper exercise, and new analyses may point in
new directions.”); see also Marsh, 490 U.S. at 371 (NEPA is designed to “prevent
or eliminate damage to the environment”). Although the no-action alternative is
often the environmentally preferable one—as it was in this case, ER 20—a proper
alternatives analysis can still encourage a decisionmaker away from an action that
is more destructive to the environment than another reasonable action alternative.
Aware of the alternatives, BPA could have sent the Applicant back to the drawing
board by denying the interconnection, to the ultimate benefit of the environment.
In this case, by failing to prepare a lawful alternatives analysis, BPA
eschewed the independent value of such analysis to guide informed
decisionmaking, in violation of NEPA. See Pit River Tribe v. U.S. Forest Serv.,
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469 F.3d 768, 785 (9th Cir. 2006) (“The consideration of alternatives requirement .
. . guarantee[s] that agency decisionmakers have before them and take into proper
account all possible approaches to a particular project . . . which would alter the
environmental impact and the cost-benefit balance.”) (internal quotation omitted).
By deliberately blinding itself to the relative harms of true alternatives, BPA tore
the heart out of its EIS.
3. Feasible alternative turbine configurations were available that would have caused different environmental effects.
It is self-evident that there were several possible alternative configurations
of turbine numbers, capacities, and locations that would meet the Project’s stated
goal. Analyzing different turbine configurations is a normal part of any lawful
NEPA analysis for an industrial-scale wind facility. See, e.g., Bundorf v. Jewell, --
F. Supp. 3d --, No. 2:13-CV-00616-MMD-PA, 2015 WL 430600, at *2 (D. Nev.
Feb. 3, 2015) (including an 87-turbine alternative, a 96-turbine alternative, and a
no-action alternative); Protect our Communities Found. v. Jewell, No. 13CV575
JLS JMA, 2014 WL 1364453, at *6 (S.D. Cal. Mar. 25, 2014) (“BLM considered a
variety of different alternatives, ultimately selecting seven of them for in-depth
study and analysis, including five alternatives utilizing configurations or designs
for the Project that were not proposed by [the developer], and two no-action
alternatives . . . .”).
Although agencies have considerable discretion to define the purpose and
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need for a project, they have less discretion to define the scope of alternatives
because an “agency must look at every reasonable alternative within the range
dictated by the nature and scope of the proposal.” Friends of Southeast’s Future,
153 F.3d at 1065–66. The Applicant’s goal is a Project built on its own land with a
total capacity of 70 to 75 MW, using some combination of turbines each with a
capacity of 1.2 to 2.5 MW. ER 210. Here, the record is replete with evidence that
reasonable and feasible alternatives to this Project were available, but inexplicably
not evaluated in the FEIS.
For example, Mr. Spadaro stipulated that a maximum of 38 2.0-MW or
larger turbines would be used in the Project. ER 518. When considered along with
BPA’s stipulation that the same model turbine would be used throughout the
project, ER 211, then, by simple mathematics, the Project’s maximum 75 MW
nameplate capacity could be achieved with 38, 33, 30, or 25 turbines, depending on
which capacity turbine model is chosen. BPA itself conceded that “if 1.8 MW
turbines were selected, the project could use up to 42 turbines, however if 2.5 MW
turbines were selected, only 30 turbines could be built”—acknowledging the
feasibility of a 30-turbine array. ER 308 n.16. BPA also assured public
commenters that the Project’s 650-foot-wide corridors would allow for variations
in turbine siting to accommodate any geotechnical constraints. ER 430–31 443–44.
And, even after the State eliminated 15 turbines in the SCA, the Applicant
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confirmed that a 35-turbine option remained feasible and economically viable. ER
93.
This Court has rejected NEPA alternatives analyses in similar cases where
reasonable and feasible alternatives existed but the agency chose instead to study a
single action alternative or its functional equivalent. See ‘Ilio’ulaokalani Coal. v.
Rumsfeld, 464 F.3d 1083, 1097–98 (9th Cir. 2006) (Army’s failure to consider
feasible alternative of transforming a brigade outside of Hawaii was arbitrary and
capricious); Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 813–14
(9th Cir. 1999) (consideration of a no-action alternative and “two virtually
identical” action alternatives violated NEPA). The Court in Muckleshoot Tribe also
held that the agency violated NEPA by rejecting feasible alternatives, including
deed restrictions that were outside its jurisdiction, and by dismissing other feasible
alternatives without detailed consideration. Id. at 814.
The Applicant, the public, other agencies, and even BPA recognized that the
Project’s potential harm to magnificent scenic vistas, to birds and bats that live
near and migrate through the Project site, and to surrounding communities, would
vary widely depending on the number of turbines installed. The Applicant’s
President candidly testified that “[f]ewer larger turbines [are] going to not have as
much impact as more numerous smaller turbines.” ER 532; see also ER 509
(Seattle Audubon Society testimony that reducing the number of turbines could
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avoid some impacts while producing a similar amount of power). The fact that
visual resource impacts would be far smaller with a 25- or 30-turbine alternative
was evident in many public comments urging consideration of a reduced-turbine
option, and also is reflected in the plea by the Applicant’s counsel to “simply look
at the visual simulations if you want and imagine a lot less turbines.” ER 491.
BPA specified that the noise modeling was based on an industry-leading 1.8-
MW turbine. ER 308 n.16. But BPA also recognized that “[t]he project may use
larger-capacity wind turbines, up to 2.5-MW, which could have a different noise
profile,” and that “[i]f 1.8 MW turbines were selected, the project could use up to
42 turbines, however if 2.5 MW turbines were selected, only 30 turbines could be
built, and overall project noise could be lower.” Id.
B. The Reasons BPA Offered for Not Considering Different Turbine Configurations Were Specious.
BPA’s reasons for excluding from consideration any alternatives other than
the “worst-case scenario” are self-refuting. For example, the FEIS includes the
following statement:
The number of wind turbines within the Project Area already has been minimized to the extent practicable in light of the Applicant’s objectives. Accordingly, if any turbines are removed from the Project design, other locations must be found to replace those turbines to maintain the minimum necessary capacity.
ER 252. This statement is patently false, given the Project’s stated variables of “up
to 50” 1.2- to 2.5-MW turbines. ER 242.
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Equally incomprehensible is the statement that
The Applicant also considered the feasibility of a smaller generation facility within the proposed Project Area, either by removing turbines or utilizing a smaller Project Area. However, the Project is being proposed as an ‘integrated whole’—in other words, as a single generation facility, not pieces of a whole, where some turbines may be eliminated.
ER 252. This statement is belied by Mr. Spadaro’s stipulation that the Applicant
could easily limit the Project to 38 turbines. See ER 518–19. BPA itself undercut
the “integrated whole” theory by telling a commenter that “[t]he use of taller
turbines . . . would result in fewer turbines.” ER 438. BPA’s cursory dismissal of
feasible alternatives cannot satisfy NEPA. See Muckleshoot Tribe, 177 F.3d at
813–14.
In summary, alternatives to the “worst-case scenario” of a 50-turbine wind
project were feasible, and consideration of these alternatives would have disclosed
varying levels of impacts to the environment. By not conducting a detailed analysis
of all feasible alternatives, BPA violated NEPA, and its decision to approve the
interconnection was arbitrary and capricious.
IV. BPA VIOLATED NEPA BY FAILING TO EVALUATE THE EFFECTIVENESS OF MITIGATION MEASURES.
An agency which relies on an EIS in its decisionmaking must include an
assessment of whether proposed mitigation measures can be effective in reducing
or eliminating harm from the project. “Implicit in NEPA’s demand that an agency
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prepare a detailed statement on ‘any adverse environmental effects which cannot
be avoided should the proposal be implemented,’ is an understanding that the EIS
will discuss the extent to which adverse effects can be avoided.” Robertson, 490
U.S. at 351–52 (quoting 42 U.S.C. § 4332(2)(C)(ii)). “An essential component of a
reasonably complete mitigation discussion is an assessment of whether the
proposed mitigation measures can be effective.” S. Fork Band, 588 F.3d at 727.
Because NEPA requires a discussion of the extent to which adverse effects can be
avoided, “[a] mitigation discussion without at least some evaluation of
effectiveness is useless in making that determination.” Id. As a result, “[a] mere
listing of mitigation measures is insufficient to qualify as the reasoned discussion
required by NEPA.” Neighbors of Cuddy Mtn., 137 F.3d at 1380.
Although the FEIS listed several potentially serious harms that the Project
could cause—for example, to the unparalleled scenic views and recreational
resources of the adjacent Scenic Area and to birds and bats that use the Project
site—nowhere did it evaluate whether the mitigation measures listed in the FEIS
actually will be effective at preventing harmful effects. Instead, the FEIS merely
included several lists of mitigation measures that would be implemented only
“where feasible,” and then only “to the extent feasible” or based on plans to be
prepared at some unspecified future time. ER 192, 258–65, 301–07, 309–10, 350–
55. Lists of mitigation measures also appear in Table 1-1 and in the June 2015
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Mitigation Action Plan. ER 219–30; 78–91. None of these lists evaluated which
mitigation measures are actually feasible, and none of them contained any
evaluation whether the future measures and plans will actually be effective at
mitigating the harm from the Project.
An agency is not required under NEPA to develop a complete mitigation
plan detailing precise mitigation measures. Tillamook County v. U.S. Army Corps
of Eng’rs, 288 F.3d 1140, 1144 (9th Cir. 2002). Even prospective mitigation plans
satisfy NEPA where they are “developed to a reasonable degree.” Wetlands Action
Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1121 (9th Cir. 2000). But
the agency must have something concrete to evaluate. Here, under the terms of the
SCA, the Applicant “shall implement the mitigation measures set forth in this
Agreement, including, but not limited to, those presented in the revised
Application or identified in the final FEIS as commitments made by [the
Applicant].” ER 146. However, there are no “commitments” in the FEIS—merely
lists of measures that only need be undertaken “to the extent feasible.” ER 192,
301–07, 319, 309–10, 350–55.
The SCA also described 26 separate mitigation plans the Applicant must
prepare in the future. ER 143–68. Not a single one of these plans had been
developed at all when BPA issued the FEIS and ROD, much less “to a reasonable
degree.” Moreover, the so-called mitigation measures are so loosely worded as to
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be ineffectual. Even the requirement to mitigate harm to birds and bats through
micrositing was required only “as practical.” ER 190. Without an evaluation
whether the yet-to-be-prepared mitigation plans and other measures required only
“to the extent feasible” will, in fact, decrease the Project’s harms, the FEIS violates
NEPA. S. Fork Band, 588 F.3d at 727; Neighbors of Cuddy Mtn., 137 F.3d at
1380–81; cf. Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th
Cir. 2000) (upholding agency’s evaluation of mitigation effectiveness where the
agency conducted computer monitoring to predict effects, ranked the probable
efficacy of different mitigation measures, and identified standards to measure
mitigation success). The inevitable conclusion is that the discussion of mitigation
measures for this Project “is not an analysis of the measures’ effectiveness; it is a
statement of what [the agency] hopes will happen.” Nat’l Trust for Historic Pres.
v. Suazo, No. CV-13-01973-PHX-DGC, 2015 WL 1432632, at *10 (D. Ariz. Mar.
27, 2015).
BPA premised its ROD on a claim that “[a]ll mitigation measures in the
[FEIS] have been adopted” and that “in addition to identifying mitigation measures
in the EIS, the State of Washington has included numerous conditions in the Final
SCA . . . that are intended to ensure that the [Project] is built and operated in a way
that preserves and protects the quality of the environment.” ER 40. BPA claims
that all these measures are “fully binding” on the Applicant. ER 25. But because
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the FEIS’s mitigation measures are, by their own terms, so highly qualified or
deferred far into the future, BPA’s justification in its ROD for relying on
mitigation measures collapses like the house of the foolish man who built on sand.
Finally, the original sin of evaluating only a single, indeterminate action
alternative would have infected any attempt to evaluate potential mitigation. An
indeterminate Project has indeterminate effects, and it would be nearly impossible
to predict whether any mitigation would reduce them. Without a more definitive
explanation of what form future mitigation plans might take, and without any
evaluation of whether the inchoate mitigation measures will be effective, there
simply is no way to determine what the likely environmental impacts of the Project
are likely to be—and thus no way for BPA to make a reasoned decision whether
the Project’s harmful effects would be too great to approve interconnecting the
Project to its power grid. Because BPA utterly failed to analyze the effectiveness
of the mitigation measures it relied upon, its decision to adopt the ROD and
approve the interconnection was arbitrary and capricious.
V. THE FEIS DID NOT TAKE A HARD LOOK AT THE PROJECT’S POTENTIAL HARM TO BIRDS AND BATS.
Wind turbines are notorious for killing bats and birds—especially in forested
environments. ER 411 (“The highest bat mortality rates documented at wind
energy facilities have been on forested ridgetops in the eastern US.”); ER 573, 577
(bird species diversity is much greater at the Project site than at the Altamont Pass
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in California, where bird kills by turbines are “notoriously high”). The FEIS
deliberately downplayed the harm that corridors of massive, spinning turbines can
have on bird and bat species and failed to take a hard look at these impacts.
A. The FEIS’s Analysis of Impacts to Birds Violated NEPA.
1. BPA’s conclusion that negative impacts to local population levels are unlikely was arbitrary and capricious.
The FEIS’s conclusion that “[i]t is unlikely that the Project would have any
negative impacts on population levels [of birds in] and near the Project Area” was
arbitrary and capricious because BPA did not have any data on the local population
levels of different bird species. ER 298. NEPA requires an agency to provide the
data on which it bases its environmental analysis. See Lands Council v. McNair,
537 F.3d 981, 994 (9th Cir. 2008) (en banc) (holding that an agency must support
its conclusions with studies that the agency deems reliable). Here, the BPA had a
numerator (the consultant’s sporadic bird counts), but not the denominator (local
population level data), from which to predict impacts to “population levels . . . near
the Project Area.” ER 298.
Without a description of baseline conditions—each species’ population
abundance in the area—BPA had no rational basis to conclude that negative
impacts to population levels was “unlikely.” See Half Moon Bay Fishermans’
Marketing Ass’n v. Carlucci, 857 F.2d 505, 508 (9th Cir. 1988) (“Without
establishing the baseline conditions [in the project area] before [the action] begins,
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there is simply no way to determine what effect the [action] will have on the
environment and, consequently, no way to comply with NEPA.”). Furthermore,
BPA acquired data on sensitive bird population estimates for Washington after
issuing the FEIS. ER 47. This sensitive bird species population data is important
because it provides baseline data for evaluating effects to local population levels,
which did not occur in the FEIS. See id. In rationalizing its inadequate analysis,
BPA focused on the estimates of use by bird species at this site relative to other
wind projects, but did not explain why it would not correct the FEIS’s statement
about unlikely population-level effects. ER 47.
BPA’s statement that harm at the local population level is “unlikely” is a
bare assertion, unsupported by data or reasoning, and was therefore arbitrary and
capricious. See Klamath-Siskiyou Wildlands Ctr., 387 F.3d at 996 (“NEPA
documents are inadequate if they contain only narratives of expert opinions.”);
Idaho Sporting Cong., 137 F.3d at 1150 (agency conclusion unsupported by data is
arbitrary and capricious). The fact that there may be a future avian monitoring plan
does not satisfy an agency’s obligation to collect, disclose, and review data before
making a decision. N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d
1067, 1084 (9th Cir. 2011) (mitigation measures are not “sufficient to meet the
[agency’s] NEPA obligations to determine the projected extent of the
environmental harm to enumerated resources before a project is approved.
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Mitigation measures may help alleviate impact after construction, but do not help
to evaluate and understand the impact before construction.”). Without disclosure of
local population abundance data for bird species near the Project site, the FEIS’s
statement that the Project is unlikely to have negative impacts on local populations
is arbitrary and capricious and a violation of NEPA.
2. The FEIS failed to take a hard look at the likely harm to olive-sided flycatchers.
The FEIS indexed the relative prevalence of species at the Project site, but
then compared bird use at the site in the aggregate—rather than by individual
species—to other wind project sites. ER 297. However, BPA failed to evaluate
potential harm to individual bird species. In particular, the FEIS failed to take a
hard look at the potential impacts to the olive-sided flycatcher, a passerine
(songbird) that is a federal species of concern. ER 293. This species “declined at
the rate of 3.3 percent per year between 1966 and 2001,” but they are “considered a
fairly common breeder in the area encompassed by the Project Area.” ER 605; ER
293. Yet they were never observed during avian surveys for two other wind
projects proposed at forested sites in Washington State. ER 47.
The FEIS merely stated that “some turbine-related mortality may occur for”
olive-sided flycatchers. ER 297. However, “[g]eneral statements about ‘possible’
effects and ‘some risk’ do not constitute a ‘hard look’ absent a justification
regarding why more definitive information could not be provided.” Neighbors of
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Cuddy Mtn., 137 F.3d at 1380. Rather than the possibility of “some” mortality, the
evidence in the record indicates a high likelihood that olive-sided flycatchers will
be killed by the Project.
Twenty-one olive-sided flycatchers were observed during the summer 2006
avian surveys, and six were recorded during the spring of 2009. ER 279. All 21 of
the birds observed in 2006 were flying at turbine-rotor-swept height, where they
would be in mortal danger if the Project were operational. See id. Passerines
including olive-sided flycatchers were the most abundant group of birds at the
Project site, comprising 87% to 88% of all birds observed during the 2004 and
2006 surveys. ER 284, 288. A summary of twelve fatality monitoring studies
outside of California reported that passerines were the most common collision
victims, comprising about 82% of the 225 fatalities documented. ER 398.
The FEIS noted that olive-sided flycatchers “use coniferous forests for
nesting,” that they occur “in forest habitat and adjacent cleared areas such as
burned areas or clear cuts,” that they “perch high in treetops and catch insect prey
on the wing in cleared areas,” and that they “breed in Washington State and also
migrate through during August to areas in South America.” ER 278–79, 293; see
also ER 449 (olive-sided flycatchers “utilize edge habitat”). The ideal habitat
described—with clear-cuts and extensive edge habitat—is exactly what would be
found at the Project site. By clear-cutting corridors for turbines and related
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infrastructure, the Project would create yet more of this ideal habitat. See ER 248,
278–79.
Besides the Project-specific avian survey data, the FEIS contained no data
and cited no sources to support its statement that there “may” be “some” olive-
sided flycatchers killed by the Project. Rather, the FEIS tried to downplay the
potential harm to this species. Because BPA’s attempted justifications run counter
to the evidence in the record, they cannot support its conclusion of minimal likely
harm. Yet BPA inserted an unsupported statement into the FEIS that “the Project
habitat is not very conducive for this species, and that is why only a few
individuals were observed.” ER 278. This is a non-sequitur given that the Project
site is ideal habitat for olive-sided flycatchers. ER 248, 278–79, 293, 449. Because
this conclusion is unsupported by any data or citation to any source, and is flatly
contradicted by the evidence in the record, it is arbitrary and due no deference. See
Motor Vehicle Mfrs., 463 U.S. at 43; Klamath–Siskiyou Wildlands Ctr, 387 F.3d at
996; Idaho Sporting Cong., 137 F.3d at 1150.
Moreover, because none of the avian surveys took place during the critical
month of August, when olive-sided flycatchers migrate through Washington and
the Project site, the surveys missed the single most significant period during which
the birds could be killed if the Project were operational. ER 278–79, 282. It is
axiomatic that if one does not measure something, one will not detect it. See
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Alliance for the Wild Rockies v. Lyder, 728 F. Supp. 2d 1126, 1133–34 (D. Mont.
2010) (It was “disingenuous” for agency to demand “persuasive proof” when there
was “no persuasive proof because the [agency] would only consider evidence of
reproduction to suffice, yet many of the areas in question have not been surveyed
to detect such proof.”). The statement that “olive-sided flycatchers appear to
primarily use the Project area for breeding” rather than for migration, ER 298, fails
the fundamental requirement to obtain and disclose baseline data to make a non-
arbitrary conclusion. See N. Plains Res. Council, 668 F.3d at 1085; Half Moon
Bay, 857 F.2d at 508; Alliance for the Wild Rockies, 728 F. Supp. 2d at 1133–
34. And without any surveys of olive-sided flycatchers during their critical August
migration period, the unsupported statement that the birds “primarily” use the
Project site for breeding cannot be sustained.
An FEIS is arbitrary and capricious if it fails to consider an important factor,
such as the presence of species during a key time in its life cycle. See Native
Ecosystems Council, 418 F.3d at 964 (an agency does not take a “hard look” when
it relies “on incorrect assumptions or data in an EIS”). Because the FEIS reached
an unsupportable conclusion about the likelihood of negative impacts to local bird
populations and failed to take a hard look at the Project’s potential harm to olive-
sided flycatchers, its evaluation of impacts to birds is arbitrary and capricious.
//
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B. The FEIS’s Analysis of Impacts to Bats Violated NEPA.
The FEIS’s analysis of likely bat deaths at the Project violated NEPA by not
quantifying potential mortality and not discussing barotrauma, a major source of
bat mortality at wind projects. First, the FEIS did not attempt to estimate likely bat
mortality, despite the Applicant’s consultant’s warning that “bat mortality rates at
[the Project] may be higher than many other wind resource areas in the U.S.” ER
411. Instead, it included vague statements of “possible effects” and “some risk”
that are impermissible under NEPA. Neighbors of Cuddy Mtn., 137 F.3d at 1380.
The FEIS stated only that “[i]t is likely that some bat mortality would occur during
operation; however, mortality estimates are difficult due to our lack of
understanding of why bats collide with wind turbines,” and that “[s]ome bat
fatalities are anticipated as a result of the operation of the proposed Project,” but
“the extent of impacts is difficult to predict at this time.” ER 298–99.
The FEIS did not explain why estimates of bat mortality were unattainable,
especially when contemporaneous evaluations of other proposed wind projects
included very precise pre-construction projections of bat mortality. See, e.g., W.
Watersheds Project v. BLM, 774 F. Supp. 2d 1089, 1097 (D. Nev. 2011) (BLM
“studied bat mortality rates from 11 wind energy facility studies . . . [and]
concluded that the bat mortality threshold for the project would be 192 bats per
year”). In addition, the bat surveys did not identify specific species, rather
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grouping them into species with high- or low-frequency calls. ER 282. Townsend’s
big-eared bat, a federal species of concern, is among the latter, which are most
likely to be killed by wind projects. ER 282, 433. Having failed to gather relevant
data about species abundance, any statement about the Project’s potential harm to
bats was simply conjecture. ER 297–99, 588–90. The future bat survey required by
the SCA cannot substitute for gathering baseline data about likely impact to bats
before Project approval. N. Plains Res. Council, 668 F.3d at 1084–85.
Second, the FEIS inexplicably described only bat collisions with turbines,
without providing any analysis of likely bat deaths from barotrauma. ER 298.
Barotrauma occurs when a bat flies near a wind turbine and the sudden drop in air
pressure causes fatal decompression and lung damage—even if the bat never
collides with a turbine blade. ER 646. A 2008 study reported that 90% of bats
killed near wind projects suffered from barotrauma, making barotrauma by far the
most significant source of bat mortality at industrial-scale wind projects. Id. BPA’s
failure to consider this important bat mortality factor renders the FEIS’s discussion
of bat impacts arbitrary and capricious. Motor Vehicle Mfrs, 463 U.S. at 43.
VI. BPA VIOLATED NEPA BY FAILING TO SUPPLEMENT THE FEIS BEFORE ISSUING THE ROD.
When “the information in [an] initial EIS was so incomplete or misleading
that the decisionmaker and the public could not make an informed comparison of
the alternatives, revision of [the] EIS may be necessary to provide ‘a reasonable,
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good faith, and objective presentation of the subjects required by NEPA.’” Animal
Def. Council v. Hodel, 840 F.2d 1432, 1439 (9th Cir. 1988), amended, 867 F.2d
1244 (9th Cir. 1989) (quoting Johnston v. Davis, 698 F.2d 1088, 1095 (10th Cir.
1983)). Such is the case here. Where supplementation is required, the agency must
address the supplement “not just to those factors specifically identified by [the
Court], but to all environmental factors essential to an informed agency decision.”
Or. Natural Res. Council v. Marsh, 52 F.3d 1485, 1491 (9th Cir. 1995).
A. The Changes in the Proposed Action Require a Supplemental EIS.
The changes in the Project wrought by the Applicant’s stipulation to use 2.0-
MW or higher capacity turbines, ER 518, and the State of Washington’s reduction
of the maximum number of turbines to 35, ER 173, are significant changes
requiring a Supplemental EIS (“SEIS”). Even with the new upper limit of 35
turbines, reasonable alternatives remain at 25, 30, 33, or 35 turbines, using 3.0-,
2.5-, 2.3-, or 2.0-MW capacity turbines. The Applicant’s commitment to use 2.0-
MW or higher capacity turbines, along with the new limit of 35 turbines, now
permits a meaningful comparison among the effects of different alternatives, which
is absent from the FEIS. Most importantly, however, the hypothetical 50-turbine
“worst case scenario” evaluated in the FEIS as the single action alternative no
longer constitutes a realistic alternative, if indeed it ever was.
Supplementation based on changes to a project is not required when two
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conditions hold: “(1) the new alternative is a ‘minor variation of one of the
alternatives discussed in the draft EIS,’ and (2) the new alternative is ‘qualitatively
within the spectrum of alternatives that were discussed in the draft [EIS].’” Russell
Country Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1045 (9th Cir. 2011)
(quoting Forty Most Asked Questions, 46 Fed. Reg. at 18035) (emphasis in
original). Neither condition holds here, despite BPA’s conclusion to the contrary in
the Supplement Analysis. ER 42–43.
First, the maximum number of turbines has been cut by 30%—hardly a
minor variation of the 50-turbine worst-case scenario the FEIS evaluated. Second,
BPA’s assertion that the 35-turbine project is “within the scope of the Final EIS,”
ER 43, misinterprets that “spectrum of alternatives” standard. A spectrum of
alternatives is a set of distinct alternatives—not a single alternative with multiple
variables. Forty Most Asked Questions, 46 Fed. Reg. at 18026; see Russell Country
Sportsmen, 668 F.3d at 1046 (an agency’s selected alternative, 1366 miles of roads
designated for motorized use, was “within the spectrum of alternatives discussed”
because the DEIS contained separate alternatives evaluating 1287, 1441, 1774, and
2262 miles for designation). Here, because BPA evaluated nothing other than a
worst-case 50-turbine Project, an SEIS is required.
B. An SEIS is Necessary to Update Stale Bird and Bat Survey Data. An SEIS also is required in this case because the data underlying the FEIS
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and relied on in the ROD is stale. The oldest bird surveys—from 2003 and 2004—
date back more than 12 years, and even the most recent bird and bat surveys in
2009 predated the ROD by six years. See ER 269–70, 273–74, 282. Reliance on
stale data does not constitute a “hard look” under NEPA. N. Plains Res. Council,
668 F.3d at 1085–87 (Aerial surveys and site visits three and four years before
agency’s decision, and other aerial surveys from ten to twenty-two years old, were
stale and required updating with additional studies and surveys.); Lands Council v.
Powell, 395 F.3d 1019, 1031 (9th Cir. 2005) (Six-year-old wildlife data, without
updated habitat surveys, was too stale and “too outdated to carry the weight
assigned to it.”). The Supplement Analysis does not indicate that BPA considered
whether its data was stale, rendering its conclusion that no additional NEPA
documentation was required arbitrary and capricious.
CONCLUSION
For these reasons, Friends respectfully requests that this Court grant their
Petition, vacate the ROD, and remand for preparation of a lawful NEPA analysis.
// // // // //
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Dated: March 29, 2016 Respectfully submitted, /s/ David H. Becker David H. Becker (OSB # 081507)
Law Office of David H. Becker, LLC 833 SE Main Street # 302 Portland, OR 97214 (503) 388-9160 davebeckerlaw@gmail.com
/s/ Gary K. Kahn Gary K. Kahn (OSB # 814810) Reeves Kahn Hennessy & Elkins 4035 SE 52nd Avenue Portland OR 97286 (503) 777-5473 gkahn@rke-law.com
Attorneys for Petitioners
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STATEMENT OF RELATED CASES
Petitioners Friends of the Columbia Gorge and Save Our Scenic Area are
aware of no related cases pending before this Court.
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I
certify that this opening brief is proportionately spaced, has a typeface of 14 points
or more, and contains 13,985 words, excluding the parts that do not count towards
the limitation as provided in Fed. R. App. P. 32(a)(7)(B)(iii).
Dated: March 29, 2016 /s/ David H. Becker David H. Becker
Attorney for Petitioners
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PROOF OF SERVICE
I hereby certify that on March 29, 2016, I electronically filed the foregoing Opening Brief of Petitioners with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit using the appellate CM/ECF system.
I further certify that I filed true and correct copies of Petitioners’ Excerpts of Record (Volumes I-III) simultaneously using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. There are no unregistered users participating in this case. /s/ David H. Becker
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