Solar Plant Opponents Want 9th Circuit Clamp

PASADENA, Calif. (CN) - Construction of a Mojave solar plant is almost complete, and area tortoises and birds are fine, the government told the 9th Circuit, rejecting wildlife defenders' call for an injunction.

Western Watersheds Project claims that the Ivanpah Solar Generating System will increase mortality rates in birds and the endangered desert tortoise in violation of both state and federal environmental laws.

Developed by BrightSource Energy, NRG Energy and Google, the 3,600-acre solar plant will operate on federally owned land roughly 50 miles northwest of Needles, in the Mojave Desert. Project descriptions estimate that it will be able to generate around 392 megawatts of renewable energy and power more than 140,000 homes.

The plant will have around 170,000 heliostat mirrors, which reflect sunlight onto boilers located on top of 450-foot towers.

Ivanpah was the first large-scale solar power plant approved by the Secretary of the Interior Ken Salazar. It will also be the first solar power facility to bring power to Pacific Gas & Electric and Southern California Edison, the two largest utilities companies in the state.

BrightSource, Salazar and the Bureau of Land Management contend that the project will bring desperately needed energy to Southern California, create both temporary construction jobs and permanent jobs at the plant, and avoid roughly 13.5 million tons of carbon dioxide emissions across its 30-year lifespan.

But environmentalists say that the project does not include adequate mitigation measures to reduce tortoise and bird death.

Rejecting Western Watershed's bid for a preliminary injunction last year, a federal judge found that the public interest weighed in favor of the project's completion.

On appeal Wednesday before the 9th Circuit, the parties debated undue harm to area wildlife species.

Western Watersheds attorney Stephen Volker argued that the court could prevent additional harm to tortoises by halting further plant construction.

"In this case, we have the unique opportunity to prevent both destruction of additional acreage ... which comprises unique high-elevation desert habitat required by the desert tortoise as a buffer against effects of global warming," Volker said.

Though the government relied on an environmental study that found heliostats would not increase bird mortality, Volker said the "garage-door-sized mirrors" can get hot enough "to incinerate birds that pass through the area."

Heliostats also increase bird mortality because their shiny surface attracts birds to fly into the mirrors, he said.

Citing a 20-year-old study of a 10-megawatt solar plant that found roughly nine birds killed per megawatt, the Oakland-based attorney said Ivanpah will likely kill as many as 6,000 birds a year because it is 50 times larger than the plant studied.

"The likelihood that a bird could make it across that scorching field of death is much less," Volker said. "Just like anyone in this room could jump a 1-foot ditch, no one in this room could jump a 50-foot ditch."

Assistant Attorney General Thekla Hansen-Young defended the project for the Justice Department, arguing that the project's impact report addressed, and included steps to reduce, bird and tortoise fatalities.

The bureau did not rely on data from the smaller project to estimate bird mortality at Ivanpah because the older plant also had large evaporation ponds, poor visibility and wires - none of which are a factor at Ivanpah.

Strobe lighting and downward shielded lighting will also reduce bird collisions with mirrors, and will be turned off when possible, the government lawyer said.

Hansen-Young also rebuffed claims that the area is home to approximately 2,000 desert tortoises, which would allegedly die if moved to a new habitat.

Claiming that the government found only 57 adult tortoises, Hansen-Young said all but two were safely moved to new locations.

Volker countered that those finding do not match estimates reached by U.S. Fish and Wildlife Service in a June 2011 biological opinion.

"Smaller creatures simply aren't seen," Volker said.

Hansen-Young said most of the large-scale construction work is almost complete. The tortoises will face their last hurdle as the bureau mows vegetation to build the last of three units.

"So as you can see from the record, this project has been carefully thought out and carefully planned to mitigate the impacts to both desert tortoises and birds and a variety of other critters talked about in the project," Hansen-Young said.

Perkins Coie attorney Albert Ferlo also defended the project on behalf of BrightSource, a solar-power company that intervened in the case. Ferlo says that Ivanpah directors had even created a "head-start program" to care for juvenile tortoises found on the project site until they grew large enough to fend off predators.

Cross-motions for summary judgment are already pending before the Central District of California. The 9th Circuit noted that any injunctive relief it could offer could be rendered legally moot by a summary judgment decision.

But Ferlo insisted that an injunction would hurt the construction workers and the thousands of California families who need its power. He also worried that the plant would not be able to care for the rescued juvenile tortoises if shut down.

Volker on the other hand argued that the ongoing environmental harm "could be prevented through adequate environmental review."

Hansen-Young was more optimistic.

"It's a good project," she told the three-judge panel. "BLM thoroughly considered the impacts [and] gave numerous opportunities to the public to respond. ... For these reasons we ask that this court confirm the decision of the District Court in denying this request for a preliminary injunction."

The case was heard by Judge Stephen Reinhardt, who dominated questioning at the hearing, Judge Barry Silverman and Judge Kim McLane Wardlaw.

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