## Facts

- The desert tortoise is a threatened species under the Endangered Species Act (ESA).
- The U.S. Fish and Wildlife Service (FWS) designated portions of the Mojave Desert as desert-tortoise critical habitat and directed land managers to limit losses of tortoise habitat outside critical habitat as much as possible.
- BrightSource Energy Inc. developed the Ivanpah Solar Electric Generating System, a solar concentrating thermal power plant in the Ivanpah Valley of the Mojave Desert.
- The Ivanpah site was characterized as excellent desert tortoise habitat.
- In 2007, the Bureau of Land Management (BLM) began preparing environmental impact statements for the project under the National Environmental Policy Act (NEPA).
- Western Watersheds Project (WWP) contended the project would harm the desert tortoise and that BLM violated NEPA by failing to adequately consider alternative sites.
- In 2010, FWS issued a biological opinion concluding the project would not jeopardize the desert tortoise, in part because the tortoise population at the site was considered small compared to the overall species population.
- The 2010 biological opinion set an incidental take limit for tortoises during construction.
- In 2011, BLM suspended construction after the take limit was reached, as surveys located more tortoises on-site than expected.
- FWS required additional measures intended to reduce tortoise deaths, after which BLM authorized construction to continue.
- WWP sued and moved for a preliminary injunction to halt further construction pending the litigation.
- BrightSource argued an injunction would jeopardize project financing; federal defendants pointed to economic benefits and federal renewable-energy policy goals; California’s Governor stated the project mattered to the state’s greenhouse-gas reduction efforts.
- WWP argued similar climate and energy goals could be met through smaller-scale, local solar facilities with less impact on tortoise habitat.

## Issues

1. Whether WWP showed a likelihood of success on its claim that BLM violated NEPA’s “hard look” requirement by underestimating the number of tortoises affected and by not adequately considering reasonable alternative sites or approaches.
2. Whether WWP satisfied the requirements for preliminary injunctive relief (likelihood of success, irreparable harm, balance of equities, and public interest) to stop ongoing construction.

## Decision

- The court denied WWP’s motion for a preliminary injunction.
- The court concluded WWP had not made the required showing at the preliminary stage that it was likely to succeed on its NEPA challenge to BLM’s environmental review and related agency actions after new tortoise information emerged.
- The court weighed the asserted harm to the desert tortoise and its habitat against the project’s status, the additional protective measures required after the take limit was reached, and the economic and energy-policy interests asserted by defendants and the intervenor.
- The court determined the balance of equities and the public interest did not favor stopping construction on the record presented for preliminary relief.

## Legal Principles

- A preliminary injunction is an extraordinary remedy; the moving party must show (1) likely success on the merits, (2) likely irreparable harm without relief, (3) a balance of equities in its favor, and (4) that an injunction is consistent with the public interest.
- NEPA requires federal agencies to take a “hard look” at environmental consequences and to evaluate reasonable alternatives as part of informed decisionmaking.
- In assessing preliminary relief in NEPA cases, courts consider whether alleged analytical defects are likely to be proven and whether interim relief is justified in light of the requested remedy, ongoing agency measures, and competing equities and public interests.
- Where agencies respond to new information with additional measures and continued oversight, a court may conclude that the demanding standard for preliminary injunctive relief has not been met, even when sensitive wildlife resources are involved.

## Conclusion

The court denied WWP’s request to halt construction of the Ivanpah Solar Electric Generating System, holding that WWP had not shown a sufficient likelihood of success on its NEPA claims at the preliminary stage and that, considering the additional tortoise-protection measures and the competing economic and renewable-energy considerations, the equities and public interest weighed against issuing an injunction.


Western Watersheds Project v. Salazar, 2011 WL 13124018 (2011)