The Biden administration is opening up more Western regions to utility-scale solar power. But they face pushback from conservationists, and input from scientists within the federal government may be helping.
Yesterday, activists opposed an environmental review of the Bureau of Land Management's new Western Solar Power Plan that would make more than 31 million acres in 11 states available for utility-scale solar power applications. BLM seeks to meet the next 20 years of demand for renewable power while avoiding the environmental and social conflicts that would hamper individual projects. But key stakeholders appear to have protested the environmental review, including counties slated to host new solar farms, Republican politicians, and the whistleblower advocacy group PEER, which I wrote about last week.
Today, however, I would like to focus on a protest filed by the Center for Biological Diversity, which submitted content to BLM that corresponds to the main points of the lawsuit.
Protesters say the plan's environmental review not only fails to adequately protect the Mojave desert tortoise, which is protected as an “endangered species” under the Endangered Species Act, but also fails to protect the turtle's potential habitat and migration. He argued that the decision to open the area appeared to be “arbitrary.” The complaint says the review was conducted without clearly explaining how it took into account guidance from the Fish and Wildlife Service, the main species conservation agency.
Zooming in even further, in a PowerPoint presentation in April of this year (which the CBD was happy to point out is available online), the agency's scientists excluded occupied turtle habitat and relocation sites from solar power plans. He said he supports that. Service officials also submitted CBD guidance documents submitted to the agency over the past year, which outline “extensive exclusion criteria” that activists say have not been followed. They also claim that this was not reflected in the examination documents previously released by the government.
Why is this important? Well, it may determine whether related decisions hold up in court. The CBD uses the word “arbitrary” because this is the standard it follows under the Administrative Procedures Act, which requires government officials to show their work and include all available information submitted. It is mandatory for companies to demonstrate that they have considered the following.
Patrick Donnelly of the CBD (whom I spoke about at length in the first edition of The Fight) wrote the protest document. Mr. Donnelly said addressing this complaint would not be a huge effort since only about 200,000 acres of the approximately 12 million acres available for solar power generation under the plan are related to turtles. He said it was supposed to be.
“We are trying to approach the protests with an open mind and not with cynicism,” he told me. “And it significantly reduces the harm of this plan.”
Still, if the CBD were to escalate, the department would need to show how it arrived at the land it opened to solar power after obtaining these recommendations. And solar projects that are already engaging with turtle conservation advocates at the individual project level, such as EDF Renewables' Bonanza Solar project north of Las Vegas, which has submitted a draft environmental review for public comment. It could also undermine the certainty of application developers within the field.
K&L Gates attorney Anker Tohan said that to prove the government's decision is arbitrary, it must prove that the move was not “reasonable and just.” Typically, the bar for a government to prove itself is “relatively low” and courts are “very respectful of government agencies” as long as “the agency's actions take into account relevant factors.” Mr Tohan said problems arise for the government when “internal analysis is inconsistent”.
Personally, I have a hard time understanding how the service's original recommendations were internalized at BLM. However, I'm guessing they were handled somehow, otherwise the service would probably get in the way. The BLM acknowledged that “design features and project guidelines” were changed to “more effectively avoid impacts to non-excluded species,” and the developer noted that “existing desert tortoise habitat solar power development projects shall be structured to maintain the
We asked BLM for clarification on this matter, but they declined to answer any questions regarding this matter. BLM spokesperson Brian Hyers said, “BLM has no comment at this time,'' citing the need to “review all protests.'' So I think we'll have to wait and see!
