united states court of appeals for the ninth circuit...

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 [email protected]

Gary K. Kahn (OSB # 814810) Reeves Kahn Hennessy & Elkins P.O. Box 86100 Portland OR 97286 (503) 777-5473 [email protected]

Case: 15-72788, 03/29/2016, ID: 9920529, DktEntry: 12-1, of 72

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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.


that did not analyze the effectiveness of proposed mitigation.


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


14

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.


15

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.

//


16

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.


17

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


18

“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


19

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.


20

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


21

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


22

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).


23

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


24

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.

//


25

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


26

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.

//

//

//

//


27

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


28

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


29

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)).


30

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


31

“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).


32

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


33

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. §


34

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


35

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


36

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


37

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


38

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”


39

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


40

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


41

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.,


42

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


43

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


44

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


45

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.


46

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


47

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


48

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


49

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


50

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


51

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,


52

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.


53

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


54

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


55

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


56

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.

//


57

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 [email protected]

/s/ Gary K. Kahn Gary K. Kahn (OSB # 814810) Reeves Kahn Hennessy & Elkins 4035 SE 52nd Avenue Portland OR 97286 (503) 777-5473 [email protected]

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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