Sunday, September 25, 2022 | Back issues
Courthouse News Service Courthouse News Service

Greens & Feds Duke It Out Over Giant Solar Farm

SAN JOSE, Calif. (CN) — A federal judge on Friday described environmentalists' request to block federal approval of a huge solar farm in California as "too complicated" to rule on immediately and took the matter under submission.

The Defenders of Wildife, Sierra Club and other environmental organizations sued the U.S Fish and Wildlife Service and the U.S. Army Corps of Engineers, claiming their approval of an industrial-scale solar project failed to take proper account of endangered species at the project site.

Recently approved plans call for the construction of a 247-megawatt solar farm planned in Panoche Valley west of Interstate 5 and about 60 miles west of Fresno, which the plaintiffs have described as a "a lost landscape in California's busy and fragmented Central Valley and surrounding foothills."

The project, 30 miles south of the Central Valley town of Los Banos, will put 6-by-3-foot photovoltaic panels on 1,529 acres of a 2,154-acre site. With the power lines, roads, fences, operation and maintenance buildings and other structures, including mitigation lands, "the project will affect more than 26,000 acres of sensitive habitat," according to the complaint.

Both sides were in court on Friday before U.S. District Judge Lucy Koh to argue whether the environmentalists' request to temporarily halt further construction and — more importantly for plaintiffs — stop the collection and relocation of endangered species from the site.

"They're translocating giant kangaroo rats right now," Sierra Club senior campaign representative Sarah Friedman said. "This is the last core recovery area for three endangered species. This is happening right now and it doesn't need to be."

The plaintiffs say the bucolic Panoche Valley is one of only three recovery areas left in California for the San Joaquin kit fox, the blunt-nosed leopard lizard, and the aforementioned giant kangaroo rat.

Kim Delfino, program director for Defenders of Wildlife, said the solar project is entirely incompatible with wildlife since it calls for the installation of thousands of solar panels and related equipment, grading of approximately 2,000 acres, vegetation control and other impacts.

On Friday, the legal argument rested on whether the project approval process, administered by the U.S. Army Corps of Engineers, was appropriate.

Jason Rylander, senior staff attorney for Defenders of Wildlife, argued the Corps should not be the permit-holders. Instead, he said the permit-holder should have been the U.S. Fish and Wildlife Service, which typically presides over matters that affect endangered species.

However, Paul Cirinio, a trial attorney for the Justice Department, argued the Corps has jurisdiction due to the presence of three bridges over a stream on the project site. Furthermore, the project site has a small wetlands which must be dredged and filled, giving the Corps authority under the Clean Water Act, Cirinio said.

Rylander meanwhile said the Corps shouldn't be the permit-holder because it typically handles projects relating to U.S. waterways and rarely attempts to manage endangered species habitat, a territory typically reserved for Fish and Wildlife.

"The Corps has put all of us in a position to try and determine what its jurisdiction is, when it has stated for so long that it doesn't have jurisdiction," Rylander said in an interview following the hearing.

During the hearing, Rylander noted that the wetlands which the Corps claims give them jurisdiction is approximately .12 acres — about the size of the courtroom — and questioned whether it was sufficient.

"If you spent time with the record, the Corps has changed its mind a million times," Friedman said. "This is the first time they've ever taken jurisdiction on anything like this."

Koh appeared persuaded by the plaintiffs' argument relating to the jurisdictional arguments.

"This agency flip-flopped and I understand your concerns because this doesn't exactly create confidence," she said.

However, she noted the Corps has since included a biological opinion created by Fish and Wildlife and a stipulation as to the management of the endangered species in the area in its permit. She also asked the plaintiffs to consider settling, noting the feds may be motivated to agree to more requirements due to their desire to get the project started on time.

"I share your frustration that they waited until you sued them to do it, but can we reach a resolution," Koh said.

After a brief recess, the plaintiffs said they would be willing to enter into settlement talks if the government stopped the endangered species translocation program immediately. The government attorneys immediately declined.

Rylander also argued the biological opinion itself is flawed, and fails to take into account the most up-to-date science.

"Our concerns relate to the endangered species and we believe our best available science arguments are strong," he said during the hearing

As an example, the U.S. Fish and Wildlife Service's document asserts there is one endangered lizard on the site, while a researcher cited by the environmental organizations performed a model that asserts there are about 670, Rylander said.

"That's quite a discrepancy," Rylander said.

However, defendant attorney Christopher Carr reminded Koh that in order to issue a temporary restraining order, the plaintiffs must meet a high standard — they must prove that the species' population will suffer as a result of the activities.

"The plaintiffs have failed to carry that burden," he said.

The developer, Solar Valley said the project will help California reach its mandate of producing 33 percent of its electricity via renewable resources by 2020. It will produce enough energy to power 70,000 homes, according to the company's website.

Estimates of how many homes a megawatt of solar power can serve vary widely however, from 164 homes to 1,000. Energy Management Today estimated that it takes 32 acres of solar panels to power 1,000 homes. At that rate, the project could provide power to 48,000 homes.

Solar Valley says construction and operation will create 1,500 jobs and bring nearly $40 million in revenue to San Benito County over the life of the project.

Solar Valley is not a party to the lawsuit.

Delfino said the environmental groups do not oppose utility-scale solar projects; they simply want them in appropriate place.

"I spend a lot of my time in places and looking for places where a project like this can exist," she said. "This project is the exact opposite of the project we are trying to promote."

Attorneys Cirinio and Carr declined to comment following the hearing. Carr works for Morrison & Foerster in San Francisco.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.