## Facts

- A private developer proposed a wind energy project on over 12,000 acres of private land in the Sierra Nevada region of California.
- The developer sought from the Bureau of Land Management (BLM) a right-of-way across federal land for a road and utility corridor to connect the private project to an existing highway and to transmit power and communications.
- BLM limited its review to the right-of-way/road corridor and prepared an Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI), determining no Environmental Impact Statement (EIS) was required.
- For Endangered Species Act (ESA) compliance, BLM consulted with the U.S. Fish and Wildlife Service (FWS) regarding the road corridor; FWS found no listed species in the corridor area.
- The developer had an alternative access route over nonfederal land, and the wind project could proceed without the federal right-of-way.
- Environmental groups sued, alleging BLM unlawfully failed to treat the private wind project and the federal right-of-way as a single action under ESA and NEPA, given alleged wildlife impacts (including raptors).

## Issues

1. Whether BLM’s grant of a right-of-way for the road/utility corridor required ESA § 7 consultation on the effects of the entire private wind project as an interrelated or interdependent activity.
2. Whether NEPA required BLM to include the private wind project within the scope of federal environmental review as part of a major federal action.
3. Whether BLM acted unlawfully under NEPA by issuing an EA and FONSI for the right-of-way instead of preparing an EIS.

## Decision

- The Ninth Circuit affirmed summary judgment for BLM and the intervenor developer.
- The court held the private wind project was not “agency action” under ESA § 7, and it was not interrelated to or interdependent on the right-of-way in a manner that expanded consultation duties.
- The court held NEPA review properly focused on the discrete federal action (the right-of-way/road corridor) and did not require analysis of the private wind project’s impacts.
- The court upheld BLM’s decision to rely on an EA and FONSI because the relevant federal action did not significantly affect the environment.

## Legal Principles

- ESA § 7 duties apply to federal “agency action” the agency authorizes, funds, or carries out, and may include only those nonfederal activities that are truly interrelated or interdependent with the federal action under governing regulations.
- A private project is not treated as part of the ESA action merely because a federal approval may be useful or economically beneficial where the private project can proceed independently.
- NEPA applies to “major Federal actions”; a limited federal approval for a discrete federal segment does not, by itself, convert a broader private development into a federal action requiring full-project review.
- An EIS is required only when the federal action being approved may significantly affect the environment; effects attributed to a separate, nonfederal project outside the action’s scope do not compel an EIS for the federal approval.

## Conclusion

The Ninth Circuit held that BLM’s right-of-way approval for a road and utility corridor across federal land did not federalize an otherwise private wind farm for ESA or NEPA purposes, so BLM’s consultation and environmental review obligations were properly limited to the discrete right-of-way action and its impacts.


Sierra Club v. Bureau of Land Mgmt., 786 F.3d 1219 (9th Cir. 2015)