By Christopher Garrett, Daniel Brunton and Taiga Takahashi

On June 6, 2016, in Backcountry Against Dumps et al. v. Jewell et al., the US Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court for the Southern District of California upholding federal approvals for the Tule Wind Project. The Court of Appeals found in favor of the Federal Government and Tule Wind LLC, rejecting claims the plaintiffs brought under the Administrative Procedure Act, National Environmental Policy Act (NEPA), Migratory Bird Treaty Act (Bird Act) and Bald and Golden Eagle Protection Act (Eagle Act).

As we have noted in previous reports, project challengers have increasingly alleged, in litigation, that the mere potential to incidentally affect migratory birds requires government agencies and/or project developers to obtain a permit under the Bird Act and the Eagle Act as a precondition to any regulatory approval for the project. The Court of Appeals, like the District Court, rejected this tactic.

The Court held that the Bureau of Land Management (BLM) “only authorized Tule to construct and operate a wind energy facility on public lands, and therefore did not act to ‘take’ migratory birds without a permit, within the meaning of the MBTA.” The Court explained that the “Plaintiffs’ argument that the Project will inevitably result in migratory-bird fatalities, even if true, is unavailing because the MBTA does not contemplate attenuated secondary liability on agencies like the BLM that act in a purely regulatory capacity, and whose regulatory acts do not directly or proximately cause the ‘take’ of migratory birds, within the meaning of 16 U.S.C. § 703(a).” The Court characterized the plaintiffs’ position as one that “verges on argument for unbounded agency vicarious liability.”

The Court rejected the plaintiffs’ claims under the Eagle Act with similar reasoning, explaining that “a requirement that the BLM independently seek a permit, or confirm that grantees seek permits before issuing a right-of-way grant, would impose an attenuated form of secondary liability on the BLM,” which was not contemplated by the statute. The Court also emphasized that the project is implementing an Avian and Bat Protection Plan that the Fish and Wildlife Service had endorsed. The Avian and Bat Protection Plan was based on scientific information and several years of monitoring, and requires a suite of mitigation measures and adaptive management to protect birds.

On appeal, the plaintiffs continued to challenge a number of BLM’s of technical and scientific determinations under NEPA regarding, among other things, the feasibility of rooftop solar panels as an alternative to utility-scale energy and the potential impacts of “dirty electricity,” electromagnetic fields, stray voltage, inaudible noise, and the potential noise impacts on birds. Relying on the extensive environmental review that the BLM conducted, the Court rejected these arguments.

The Court of Appeals’ opinion in Tule Wind reinforces the developing body of case law in the Ninth Circuit declining to expand the scope of the Bird Act and Eagle Act to apply to lawful commercial operations before any take of birds has occurred, based on a theory that the project has a potential to take birds some time in the future.