NEPA Review of Right-of-Way Request Not Extended to Private Turbine Project

Sierra Club v. Kenna

2013 WL 144251

The Bureau of Land Management's NEPA Handbook contains several hypotheticals to illustrate NEPA concepts. In the case of federal access roads to reach private landholdings, the Handbook includes this scenario:

You receive a right-of-way request from a private company to build a road across BLM-managed land to provide access to adjacent private land, on which the company plans to create and operate a quarry... [T]he creation and operation of the quarry could proceed with other, reasonably foreseeable, road access...

In Sierra Club v. Kenna, 2013 WL 144251, a California-based federal court was confronted with nearly identical facts after BLM approved a right-of-way across federal land that would provide access to a wind turbine project on adjacent private land. The wind project consisted of 102 turbines across 12,000 acres. The developer sought the right-of-way to install a service road and underground transmission lines. The road construction itself presented few impacts, although the wind turbines threatened federally-listed birds.

Critically, the federal right-of-way was not the exclusive access to the wind project site. The company asserted that an alternative access road was available over private land. The federal access road was preferable, however, because it was several miles shorter than the private access, and the private road was not yet built nor had the developer obtained all private access rights. Nonetheless, on the assumption that the private road would be available, BLM limited its environmental review to the effects of the road only, rather than the effects of the turbines. Opponents attacked BLM's grant of the right-of-way under the Endangered Species Act and NEPA.

The court began with the relevant tests under the ESA and NEPA to determine whether BLM should have analyzed the turbines' effects. Under the ESA, the key issue was whether the private project would not occur "but for" the federal action. With respect to NEPA, the court considered whether a "reasonably close causal relationship" existed between the effects of the turbines and the granting of the right-of-way. Under both tests, the court found that BLM had sufficient information to reasonably conclude that private access was available, and consequently, that BLM's decision was not arbitrary or capricious.

Finally, in an interesting turn for California practitioners, the court further supported BLM's decision by referring to the state environmental review that already had taken place under the California Environmental Quality Act for the wind project. The court stated that, although CEQA did not supplant or excuse BLM's responsibilities, NEPA's "rule of reason" also did not favor redundant or duplicative environmental reviews of the same project:

[T]here is no allegation or contention that important information concerning threats to protected species went undetermined, unconsidered, undisclosed or withheld from public scrutiny in the state CEQA process... While it is no doubt true that Plaintiffs disagree with the outcome of the state process, the court has no facts before it to conclude that requiring BLM to produce an EIS that takes into account the environmental impacts of the Wind Project would produce anything more than an opportunity for Plaintiffs to advance the same arguments on the same facts that were advanced in the state CEQA process. While the rule of reason is not determinative, in and of itself, of the issue of whether BLM unlawfully failed to produce an EIS that incorporated the expected impacts if the Wind Project on protected species, it is clear that the rule of reason does not favor Plaintiffs' position.

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