Greens Denied TRO in Solar Farm Fight

      SAN JOSE (CN) — A federal judge Wednesday denied environmentalists’ request for a preliminary injunction against a giant solar energy project they say will hurt three endangered species in an undeveloped part of California’s Central Valley.
     U.S. District Judge Lucy Koh found the Defenders of Wildlife et al. failed to establish their claim that the U.S. Fish and Wildlife Service did not use best available science when it ruled that the solar project would not harm the recovery of the three species.
     “Plaintiffs do not demonstrate a likelihood of success on the merits of plaintiffs’ claim that FWS violated the ESA [Endangered Species Act] by failing to consider the best available scientific data when drafting the 2016 BiOp [biological opinion],” Koh wrote in the 50-page order.
     Fish and Wildlife released its biological opinion in April. It concluded that the Panoche Valley Solar Project would not hurt three endangered species: the San Joaquin kit fox, the blunt-nosed leopard lizard, and the giant kangaroo rat.
     The Defenders of Wildlife sued almost immediately, saying Fish and Wildlife did not use the best available science, particularly, that it ignored the work of two well-known biologists who study the animals. Koh in May found the issues “too complicated” to rule on immediately.
     Panoche Valley Solar LLC’s 247-megawatt solar farm planned for Panoche Valley, west of Interstate 5 and about 60 miles west of Fresno, is in an area the environmentalists call “a lost landscape in California’s busy and fragmented Central Valley and surrounding foothills.”
     Plans calls for arrays of 6-by-3-foot photovoltaic panels on 1,529 acres of a 2,154-acre site.
     Joined by the Sierra Club and the Santa Clara Audubon Society, the Defenders of Wildlife say the power lines, roads, fences, operations and maintenance buildings and other structures will harm the three species.
     The solar farm and Fish and Wildlife say the conservation of nearly 24,000 acres next to the project site will preserve enough habitat for the species to recover.
     The environmentalists said an injunction was needed because the defendants were carrying out a giant kangaroo rat relocation program, which would also hurt the San Joaquin kit fox, which feeds on the rats.
     But Koh said Fish and Wildlife adequately considered the affects of the relocation program.
     “Plaintiffs do not point to any better scientific data that FWS should have considered regarding the impact of the giant kangaroo rats’ relocation on the San Joaquin Kit Fox,” she wrote.
     The plaintiffs argued that the work of biologists Barry Sinervo and William Bean, who study the blue-nosed lizard and the giant kangaroo rat, should have been considered.
     Sinervo performed a study that showed the site was suitable habitat for the lizard, but the U.S. Forest Service came to the same conclusion, and said that including Servino’s study would not have greatly altered its conclusions. Koh found the argument persuasive.
     Koh also accepted the Forest Service arguments that Bean’s population counts of the giant kangaroo rat were regional rather than site-specific, and were not peer-reviewed.
     “Given that the court must be deferential to FWS’s selection of expert methodology, plaintiffs fail to show that they are likely to succeed on plaintiffs’ claim that FWS arbitrarily and capriciously ignored Bean’s data when estimating the giant kangaroo rat population,” Koh wrote.
     Finally, the plaintiffs said the Army Corps of Engineers’ wavering on whether it had jurisdiction to implement and oversee management of the endangered species on the site demonstrated that the project needed to be halted.
     Koh agreed that the Corps of Engineers’ uncertainty was cause for concern, but said now that it has asserted jurisdiction, plaintiffs’ concerns are no longer legally valid.
     However, Koh added that “the circumstances do not provide ‘a great deal of confidence’ in the Corps’ commitment to enforcing the terms and conditions of the 2016 BiOp.”
     Jason Rylander, attorney for Defenders of Wildlife, said that while the organization will mull its options, establishing the Corps of Engineers as the agency responsible for overseeing the environmental safeguards has been beneficial.
     “That is something the Corps initially refused to accept but in response to this litigation the agency is now assuming responsibility,” Rylander said in an email.
     Rylander said there is a similar case in Sacramento County Court, focusing on “California’s unique, fully protected species statute.”
     Panoche is Spanish for sugar.

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