NEPA Does Not Require Analysis of Impacts of Continued Operations

Moapa Band of Paiutes v. U.S. Bureau of Land Management (9th Cir. 2013) 546 Fed.Appx. 655; Moapa Band of Paiutes v. U.S. Bureau of Land Management (D. Nev., Oct. 6, 2011, 2:10-CV-02021-KJD) 2011 WL 4738120 aff'd sub nom. Moapa Band of Paiutes v. Bureau of Land Management (9th Cir. 2013) 546 Fed.Appx. 655

May 12, 2014

The Ninth Circuit Court of Appeals recently affirmed a lower courts's ruling that NEPA does not require BLM to prepare an Environmental Impact Statement ("EIS") to analyze the impacts of continued operations of a power plant, when the operator sought approvals that would arguably extend the life of the operation but not its intensity as compared to past, baseline operations.

This case involved an existing power plant in Nevada that had evaporation ponds and a landfill space for ash. The power plant operator submitted an application to BLM requesting a right of way to construct, maintain, and operate new evaporation ponds and an expanded solid waste landfill in order to improve management of its wastewater evaporation process and establish sufficient landfill space. BLM completed an Environmental Assessment ("EA"), issued a Finding of No Significant Impact ("FONSI"), and approved the right of way. Plaintiffs challenged BLM's actions.

Plaintiffs argued, among other things, that BLM in preparing the EA "should have applied the 'hard look' analysis to the continued operation of the" facility. Because the new ponds and expanded landfill allowed continued operation at the associated power plant, plaintiffs argued that the operations of the plant were a "'direct or indirect effect'" that were required to be considered in the determination that no significant impact existed.

The District of Nevada ruled that BLM was not required to discuss the effects of the facility's continued operation. The new ponds and landfill were replacements for existing facilities and would not provide enhanced or increased operations. BLM's EA analysis assumed the plant would continue to operate regardless of whether it granted the right of way and, therefore, BLM limited its analysis to considering the effects of the existing plant in the EA's cumulative impact analysis. The Ninth Circuit, in a very short opinion, affirmed the District of Nevada's ruling in its entirety.

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Categories: NEPA