Ninth Circuit Upholds Wind Farm Approval

     (CN) — Federal regulators adequately addressed whether a proposed wind-turbine project near San Diego would adversely impact migratory birds and global warming, the Ninth Circuit ruled Tuesday.
     The Bureau of Land Management (BLM) granted Tule Wind, LLC a right-of-way on federal lands in southeast San Diego County to construct and operate a wind energy project.
     The facility — which was originally envisioned as 128 wind turbines and supporting infrastructure that could generate up to 200 megawatts of electricity — will be built on 12,360 acres of land in the McCain Valley, 70 miles east of San Diego.
     The Bureau of Land Management eliminated 33 of the proposed turbines from the project and required the repositioning of several others to help reduce the risk of bird collisions with turbine blades. As modified, the project is expected to generate up to 186 megawatts of electricity, which would meet the energy needs of approximately 65,000 homes and businesses.
     Environmental groups Protect Our Communities Foundation and Backcountry Against Dumps unsuccessfully argued in federal court that the BLM did not take a “hard look” at the environmental impact of the project and violated the Migratory Bird Treaty Act.
     A three-judge panel of the Ninth Circuit on Tuesday agreed with U.S. District Court Judge Janis Sammartino’s ruling that the BLM adequately investigated the various impacts of the wind project.
     “(T)he agency outlined over a dozen noise-mitigating measures that it determined would significantly reduce the environmental impacts of noise on birds to ‘low’ or minimal levels. Because the BLM concluded that the project’s noise effects could be effectively reduced, it provided less analysis of noise effects in the EIS as compared to other more significant or unmitigable environmental impacts,” Judge Milan Smith wrote on behalf of the panel.
     The agency also considered a study on the environmental effects of infrasound and low-frequency noise, along with an array of other scientific research, before concluding that such inaudible noise generated by the project would not cause discernible health impacts on humans, Smith said.
     Although the agency did not conduct a nighttime migratory-bird survey, it used scientific data to determine that use of the project area by nocturnal species would be low and that most nocturnal species would fly at altitudes higher than those of the proposed turbines.
     Furthermore, the agency “chose to reposition turbines in valleys rather than on top of ridgelines, which would lessen any risk of low-flying nocturnal migrants,” Smith said.
     An analysis in the environmental impact statement (EIS) regarding the project’s effects on greenhouse-gas emissions and global warning found that the projected emissions of 646 metric tons of carbon dioxide per year fall below the level of significance required for further analysis under the National Environmental Policy Act.
     In addition, the EIS states that the project is expected to create a renewable source of energy that would decrease overall emissions attributable to electrical generation in the state.
     “Contrary to plaintiffs’ contention, this passing projection of potential emissions reductions, simply by virtue of the project’s creation of a new source of renewable energy, is reasonable enough and does not mandate the provision of conclusive proof through additional evidence and analysis beyond that already provided in the EIS,” Smith said.
     The panel also rejected the environmental groups’ novel argument that the BLM, by virtue of granting the project’s right-of-way request, is complicit in future conduct by Tule Wind that might result in violations of the Migratory Bird Treaty Act (MBTA), a criminal statute, and the Bald and Golden Eagle Protection Act, which provides for both criminal and civil enforcement.
     Even if the project will inevitably result in migratory-bird fatalities, the BLM cannot be held liable under these Acts, because its decision to grant the right-of-way is many steps removed from the potential for the unlawful “take” of the birds caused by wind-turbine collisions, the panel said.
     Likewise, the agency was not compelled to deny the right-of-way request unless Tule first obtained a permit for the incidental take of migratory birds, the panel said.
     “Here, the BLM’s right-of-way did not sanction or authorize the taking of migratory birds without a permit; it authorized the development of a wind-energy facility. Without further indication of its involvement in the putative violation, we cannot hold the BLM complicit in future unlawful activity, separately committed by a grantee, through a mere failure to intervene at the permitting stage,” Smith said.
     Furthermore, the agency’s decision granting the right-of-way indicates that the approval of the project is contingent on Tule complying with all laws and regulations — including the MBTA and Eagle Act — as well as securing all of the necessary permits and authorizations, Smith pointed out.
     Neither the government nor attorneys for the environmental groups immediately responded to requests for comment.

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