## Facts

- A private developer proposed a utility-scale wind energy facility in eastern San Diego County, partially on federal public lands, requiring a BLM right-of-way grant under FLPMA.
- BLM prepared an Environmental Impact Statement (EIS) analyzing impacts including noise, visual effects, electric and magnetic fields, climate change, and effects on migratory birds and potential golden eagles.
- The EIS acknowledged risk of bird and possible eagle fatalities and described mitigation and monitoring measures (e.g., siting restrictions, operational measures, monitoring, and adaptive management).
- The EIS evaluated multiple alternatives, including a no-action alternative, and BLM selected a reduced-footprint alternative with fewer turbines than initially proposed.
- Environmental and community plaintiffs sued under the APA to set aside BLM’s Record of Decision approving the right-of-way, alleging violations of NEPA, the MBTA, and the BGEPA.
- The parties filed cross-motions for summary judgment.

## Issues

1. Whether BLM’s NEPA purpose-and-need statement was impermissibly narrow and biased toward approval, improperly limiting the range of reasonable alternatives.
2. Whether the EIS considered a reasonable range of alternatives under NEPA’s rule of reason.
3. Whether the EIS unlawfully deferred mitigation by relying on vague future measures rather than sufficiently developed mitigation analysis.
4. Whether BLM took the required NEPA “hard look” at impacts, including avian/eagle risks and cumulative effects.
5. Whether BLM violated the MBTA or BGEPA by authorizing a project with predicted incidental bird/eagle mortality without obtaining or requiring take permits before approval.

## Decision

- Plaintiffs’ motion for summary judgment was denied.
- Federal defendants’ and the developer’s cross-motions for summary judgment were granted.
- The court held BLM complied with NEPA: the purpose-and-need statement was reasonable, the alternatives analysis was adequate, mitigation discussion was sufficient, and the agency took a “hard look” at environmental consequences.
- The court held BLM did not violate the MBTA or BGEPA by approving the right-of-way without first obtaining or requiring incidental take or eagle take permits.
- BLM’s Record of Decision and right-of-way grant were upheld.

## Legal Principles

- NEPA review is procedural; an EIS must reasonably define purpose and need and evaluate a reasonable range of alternatives in light of that purpose, not every conceivable alternative.
- An agency may frame purpose and need with reference to an applicant’s objectives and relevant policy goals, so long as it does not unreasonably constrain alternatives.
- NEPA requires a “hard look” and full disclosure and analysis of environmental consequences; it does not require proof that impacts will be eliminated.
- NEPA does not require a fully developed mitigation plan; a reasonably complete discussion of mitigation and commitments sufficient for informed decision-making can satisfy NEPA.
- The MBTA and BGEPA do not impose a general requirement that a federal regulatory agency obtain take permits merely because its authorization may enable third-party activity that incidentally kills protected birds.

## Conclusion

The court upheld BLM’s approval of a reduced-footprint wind project on federal land, concluding the EIS satisfied NEPA’s requirements for purpose and need, alternatives, mitigation discussion, and impact analysis, and that BLM’s right-of-way authorization did not itself trigger MBTA or BGEPA permitting obligations for incidental bird or eagle take.


Protect Our Cmtys. Found. v. Jewell, No. 13-cv-00575-JLS (JMA), 2014 WL 1364453 (S.D. Cal. Mar. 25, 2014)