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."
