PASADENA (CN) – The 9th Circuit heard from both sides in two cases Friday challenging the government-approved development of a land parcel in California’s Mojave Desert for a solar power plant – one objecting to its environmental impact, the other to its alleged restriction of religious freedom.
BrightSource Energy’s Ivanpah project is currently the largest solar thermal power plant in the world, covering 3,600 acres. It began commercial operations in 2013.
In the first case, Oakland-based Stephan Volker represented the environmental group Western Watersheds Project. He argued before the three-judge panel that the government failed to carefully analyze the project’s impact on the area’s desert tortoise population in violation of the National Environmental Policy Act’s “hard look” standard.
The government’s environmental impact statement, Volker said, failed to account for all of the juvenile tortoises and unhatched tortoise eggs in the area, leading the government to underestimate the population by a factor of more than 20.
Circuit Judge Andrew Kleinfeld pointed out that counting the juveniles and the eggs would not have been a worthwhile effort, since most desert tortoise eggs do not hatch and more than 95 percent of juveniles do not survive to sexual maturity.
“That’s like going to the grocery store and counting chickens by counting eggs,” he said.
The judge also asked why this particular and relatively small piece of land is crucial to the survival of the species, especially given the plentiful desert habitat surrounding the solar plant.
“You’ve got a tiny dot of the vast area these tortoises live in,” he said.
Volker answered that the Ivanpah site is uniquely located at a high elevation, relatively untouched and a good refuge for the tortoises to survive “the onslaught of global warming.”
He said that the government should have “rolled up its sleeves” and given more consideration to two alternative sites for the project, which he said the Bureau of Land Management rejected from the outset due to the expense of raising dikes.
“The government just brushed the alternatives aside without conducting an analysis of what would be the cost of feasibility,” the attorney said.
Justice Department attorney Thekla Hansen-Young said that the project’s site was chosen because the land nearby was already highly developed, as opposed to the 23 alternative sites that the BLM considered.
She also said that the number of adult tortoises counted in the area indicates population stability, and that even if all of the juveniles and eggs were destroyed in a hypothetical situation there would be minimum population impact.
The government has also taken measures to shelter and relocate the affected tortoises, Hansen-Young said, which have proven successful for population maintenance – the mortality rates for the translocated tortoises are the same as for the ones left behind.
Kleinfeld then asked whether Western Watersheds’ appeal was even practical since the plant is already in operation.
“The project’s already done,” he said. “What’s left to accomplish? Whatever’s going to happen to the tortoises on account of it is already going to happen.”
Hansen-Young answered that very little could be accomplished by remanding the case to the district court, and that the Department of the Interior retains the authority to impose mandatory mitigation measures and “will do so if there is an indication that it is necessary.”
Albert Ferlo, BrightSource’s attorney with the Washington firm Perkins Coie, agreed that there wasn’t much to be done after the fact.
“All we would be doing is putting out for public comment studies on a project that’s already been done and has been producing energy for over a year,” he said.
In his rebuttal, Volker argued that the group’s action was not pointless because “it would behoove the government to broaden its horizons so that agencies would be better informed in making good decisions.”
He added: “This court is uniquely situated to take a close look and conduct the government so that we can avoid global warming and needless effects of external impacts.”
The second case against the power plant came from the Native American group La Cuna De Aztlan, which claims that the project blocks access to its sacred sites.
The group’s attorney Cory Briggs argued before the panel that a fence surrounding the solar plant obstructs the Salt Song Trail and its numerous landmarks of religious significance to the group – the visitation of which is a “rite of passage.”
Briggs said that the group’s members often undertake sacred runs – which traverse multiple states and last weeks if not months – structured around the landmarks.
“By putting up the fence, you are setting up a detour requiring them to get from Point A to Point C, except Point B is religiously significant,” Briggs said.
Kleinfeld questioned whether the project impacted the group’s religious practices as seriously as Briggs claimed.
“If you have a project that covers five square miles, does it significantly burden the free exercise of religion?” he asked. “And if you have so many locations in several states, are you saying that all these states are off limits?”
Briggs responded that his clients were not arguing against the use of the land but against not being allowed to visit the land freely.
“So is what you’re saying is that you want them to open the gate when an Indian comes and they can run right through it?” Kleinfeld asked, adding that he imagined BrightSource would have security concerns over allowing public access to the plant.
Judge Richard Clifton raised the issue of the landmarks’ relative significance.
“There’s one temple location in Mecca that’s of great significance,” he said. “We have nothing telling us that there is such significance here.”
Briggs answered that he was “somewhat uncomfortable not with the questions but with the flavor of them,” since “the Supreme Court has urged that we be careful about not probing too difficultly into the sincerity of religious beliefs.”
Arguing for the government, Robert Oakley said that La Cuna De Aztlan never informed the government of the disputed sacred sites’ locations. Briggs later rebutted that the sites are treated confidentially and that, in order to discuss them, the Native American tribes must meet in person with the Bureau of Land Management.
Regardless, Oakley said, the group’s claims have been “deliberately vague.”
Ferlo, arguing again for BrightSource, said that the fence in question is “not a monolithic fence surrounding the entire site.”
“There are gaps and pathways at this point in time that would allow anyone to go from Point A in the north of the project to Point B in the south of the project,” he said.
The attorney added that there would be “no apparent reason” to arrest anyone who tried to use the pathway, batting back the tribe’s claims that they approached the site and were told by an unspecified person that they risked being arrested for trespass.
In his rebuttal, Briggs said, “It is the threat of prosecution that is the burden” on his clients.
None of the attorneys in either case would provide further comment.
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