Appeals court rips BLM review of contested Ore. wind project

By Scott Streater | 05/27/2016 01:16 PM EDT

A federal appeals court has ruled that the Bureau of Land Management’s review of a controversial wind power project in southeast Oregon “did not adequately address impacts to the greater sage grouse,” throwing the future of the project BLM approved nearly five years ago into doubt.

A federal appeals court has ruled that the Bureau of Land Management’s review of a controversial wind power project in southeast Oregon "did not adequately address impacts to the greater sage grouse," throwing the future of the project BLM approved nearly five years ago into doubt.

The 25-page ruling issued yesterday by the 9th U.S. Circuit Court of Appeals adds more fuel for critics who say the Obama administration has rushed to approve wind, solar and other renewable energy projects without properly analyzing impacts to wildlife and other resources.

The appeals court ruling throws out a federal district judge’s 2013 decision that sided with BLM and the project proponents in dismissing a lawsuit by environmental groups challenging the agency’s review of the 104-megawatt Echanis wind project in Harney County, Ore.


The Oregon Natural Desert Association and the Audubon Society of Portland filed the federal lawsuit in April 2012, arguing BLM’s analysis of the project in a remote section of the congressionally established Steens Mountain Cooperative Management and Protection Area violated the National Environmental Policy Act because it did not adequately address impacts to sage grouse winter habitat.

Vancouver, Wash.-based Columbia Energy Partners LLC, the project’s developer, and Harney County, which issued a conditional use permit to the developers to begin construction, later intervened in the lawsuit as defendants in support of BLM.

But in the ruling issued yesterday, Circuit Judge Marsha Berzon, writing on behalf of the three-judge panel, concluded that BLM made substantive errors in regard to grouse impacts outlined in an environmental impact statement, thus invalidating the scientific reasoning behind its ultimate decision to approve the project and a transmission line.

Specifically, BLM did not conduct on-site inspections of the project site to determine whether grouse were using it as winter habitat, instead relying on surveys of two sites to the east and west of the project. BLM concluded in its final EIS that based on the other site surveys, "greater sage-grouse are assumed not to utilize the Echanis Project Area for winter habitat from the time that the vegetation is covered with snow until snowmelt, roughly December through April."

But a "fundamental flaw infects this reasoning," Berzon wrote. Specifically, other surveys found that four grouse were found on the East Ridge site during February, "indicating that some sage grouse do spend the winter there," she wrote.

Thus, the final EIS for the project "did not comply" with requirements to provide accurate "scientific analysis" and did not adhere to "the agency’s obligation" to ensure "the professional integrity, including scientific integrity, of the discussions and analyses" in the EIS, the ruling says.

"Scientists and cooperating agencies" on the project had recommended to BLM "that actual winter surveys of sage grouse be conducted or, if not, that the BLM assume sage grouse were present at the Echanis site during the entire winter."

The agency did neither, Berzon wrote.

"In short, the [final EIS’s] inaccurate data concerning the closer East Ridge site that was surveyed rendered its assumption concerning the winter presence of sage grouse at the Echanis site arbitrary and capricious," she wrote.

Berzon added: "The inaccurate information and unsupported assumption materially impeded informed decisionmaking and public participation. Without appropriate data regarding sage grouse use of the Echanis site during the winter, whether direct or via a supportable extrapolation, it was not possible to begin to assess whether sage grouse would be impacted with regard to access to viable sagebrush habitat in the winter months."

What’s more, had BLM assumed grouse were present at the site, as the agency had been advised to do, the mitigation measures that were approved by BLM in the record of decision "would not allow development to go forward there," she wrote.

It’s not clear what BLM might do next.

Kimberly Brubeck, a BLM spokeswoman in Washington, D.C., said the agency is reviewing the ruling and cannot comment on ongoing litigation.

Brubeck referred questions to the Department of Justice, which did not respond to a request to comment on this story by publication time.

The Echanis wind project was proposed to string as many as 69 wind turbines across more than 10,500 acres of private lands.

BLM’s permitting authority was limited to approving a 46-mile-long transmission line that would carry electricity generated at the wind farm to market, and would have crossed about 12 miles of federal lands.

But BLM had to review the entire project, and conducted a detailed EIS of the proposed wind farm and the transmission line. The total project was formally approved in a record of decision signed in late 2011 by former Interior Secretary Ken Salazar.

The Echanis project is listed by BLM as among 11 commercial-scale wind power projects, with a total capacity to produce 4,766 MW of electricity, that have been approved by the Obama administration since 2009.

Representatives of Columbia Energy Partners did not respond to requests seeking comment on this story.

But the Oregon Natural Desert Association and the Audubon Society of Portland praised the court’s decision.

Both groups, which had appealed U.S. District Judge Michael Mosman’s 2013 decision to throw out the case more than two years ago, have long argued the Steens Mountains location is not a proper site for an industrial-scale wind farm. They argued the project would have destroyed the grouse’s nearby winter concentration areas and severed a unique habitat corridor that is essential to the survival of neighboring grouse populations.

"This location is simply not the right place for wind development in Oregon’s high desert," said Brent Fenty, executive director of the Oregon Natural Desert Association. "Steens Mountain is a crown jewel of Oregon’s high desert. It is home to sage grouse and other sensitive wildlife species, and thousands of Oregonians treasure the region for its wide-open vistas and wild country."

Siting problems

The latest appeals court ruling is not the first time a federal court has sharply criticized BLM over its analysis of commercial-scale wind development.

A federal judge in Nevada last year threw out the approval of what was projected to be the Silver State’s largest wind power project, ruling that the Interior Department did not properly evaluate potential impacts to golden eagles and Mojave Desert tortoises (Greenwire, Nov. 4, 2015).

Salazar, in signing a record of decision in 2013, hailed the Searchlight Wind Energy Project as a major advancement of the administration’s ongoing efforts to use federal lands to drive the development of renewables.

But U.S. District Judge Miranda Du, an appointee of President Obama, remanded the final EIS for the project back to BLM to correct a host of deficiencies she identified. Du concluded that "analytical gaps exist throughout the wildlife analyses underlying the ROD," as well as the final EIS and a related biological opinion conducted by the Fish and Wildlife Service.

Bob Sallinger, conservation director of the Audubon Society of Portland, said the court ruling on the Echanis project highlights how BLM has not always worked to properly site industrial-scale renewables projects.

"This project was left over from a time before the BLM and the state of Oregon set guidelines to encourage developers to focus on low-conflict areas and avoid places like the Steens," Sallinger said in a statement.

Further, he added, the decision "underlines what BLM should have decided in the first place and can help inform constructive conversations in the future that ensure that renewable energy projects are sited in areas where they avoid these types of impacts."