PASADENA, Calif. (CN) — An environmental challenge to new solar-energy developments across the Southwest curried little sympathy Monday from the Ninth Circuit.
The dispute stems from solar-energy zones that the U.S. Bureau of Land Management found suitable in 2012 for utility-scale solar projects.
Heeding the Obama administration's 2008 call to increase the nation's supply of renewable energy, regulators designated 17 zones, encompassing 285,000 acres of public land in Arizona, California, Colorado, Nevada, New Mexico and Utah.
The bureau also identified another 19 million acres to consider for solar projects on a case-by-case basis.
Western Lands Project and two other groups challenged the move in court, saying the bureau had elected to blight "largely undisturbed desert lands," without considering using any lands already "disturbed" by agriculture and mining uses.
A federal judge sided with the government at summary judgment, however, prompting the groups to seek a reversal from the Ninth Circuit.
In a brief filed ahead of Monday morning's hearing, the environmentalists accused the bureau of failing to sufficiently evaluate the trade-off between preserving the desert ecosystem and improving solar-energy capacity.
They said the National Environmental Policy Act required the bureau to include a plan using disturbed lands as a reasonable alternative to the one it approved.
At Monday's hearing, U.S. Circuit Judges Alex Kozinski and Jay Bybee told Western Lands that the records contradicts its claims.
"It's clear the agency took that into account," Kozinski said, with regard to disturbed lands. "It's not a situation where it was proposed and they did not consider it."
Western Lands staff attorney Christopher Krupp argued that the bureau had a duty to do more than simply include disturbed lands in its report.
Since the bureau has no inventory of such lands, "there is no way of knowing they evaluated disturbed lands as a reasonable alternative," Krupp said.
Kozinski nonetheless found it "significant" that the bureau wanted to give preference to solar-energy developers whose proposals include disturbed lands.
Krupp countered that the decision was not significant given National Environmental Protection Act requirements.
"Future preference does not evaluate the comparative benefits of a program," Krupp said. "Giving preference later would only provide an evaluation of the alternative of 1,000 to 2,000 acres of land."
Kozinski disagreed. "Every time someone makes a proposal, preference kicks in," the judge said. "Every time."
The Justice Department's attorney David Shilton told the panel meanwhile that the U.S. Environmental Protection Agency was "very satisfied" with the bureau's decision.
Western Lands notes that it was the EPA that asked the Bureau of Land Management to consider a disturbed-lands alternative.
Shilton said the bureau evaluated parcels based on suitability for solar-energy development. Areas containing critical habitat and mountainous terrain were struck from the list, as were parcels near land on which transmission lines would run.
Basing its decisions on suitability meant the bureau chose some parcels that, although undisturbed, had no biological value, rendering them "very good" parcels for development, Shilton said.
"[The bureau] didn't do it on the basis of disturbed or non-disturbed, but nothing requires them to," he added, referring to the National Environmental Protection Act's requirements. (Click here to see the government's brief.)
Sitting by designation from Shreveport, La., Senior U.S. District Judge Donald Walter rounded out Monday's judicial panel. The court did not indicate when it will rule.
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