Ninth Circuit Upholds BLM’s Environmental Assessment Allowing Expansion of the Reid Gardner Generating Station

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The Ninth Circuit Court of Appeals recently upheld summary judgment in favor of the Bureau of Land Management (BLM) regarding its assessment of the potential environmental impact of a proposed expansion of the Reid Gardner Generating Station.  The court found that the BLM’s Environmental Assessment (EA) allowing the expansion, as well as its decision not to prepare a full Environmental Impact Statement (EIS) concerning the expansion, complied with the National Environmental Policy Act (NEPA) and with the BLM’s own policies.  (Moapa Band of Paiutes v. Bureau of Land Management, 2013 WL 6154176 (Nev.), November 25, 2013.)

 

The Nevada Power Company applied to the BLM in 2006 to be allowed to construct new evaporation ponds and an expanded waste solid waste landfill for its Reid Gardner Generating Plant in Clark County, Nev.  After a period of public comment, the BLM issued an EA and a finding of no significant impact (which rendered a full EIS unnecessary) approving the expansion of the power plant.  The Moapa Band of Paiutes and the Sierra Club filed suit in Nevada district court seeking to block the proposed expansion, arguing that the BLM had failed to follow its own policies and that it had not complied with NEPA.  In a detailed decision, the district court granted summary judgment in favor of the BLM.  (2011 WL 4738120 (D. Nev.), October 6, 2011.)

 

The Court of Appeals subsequently upheld the order granting summary judgment.  Deferring to the BLM’s interpretation of its own policies, the court found that even if the BLM had erred in determining that the waste was not hazardous, BLM’s own policies allowed the storage of hazardous waste on public lands.  It also found that any such error was harmless because the BLM would have come to the same finding of no significant environmental impact even if the waste were hazardous.

 

The court also found that the BLM complied with NEPA.  NEPA requires a federal agency to prepare an EIS regarding actions that may significantly affect the human environment.  However, if the agency concludes in its EA that a project would have no significant environmental impact, then a full EIS is not required.  In order to make that finding, the EA must take a hard look at 10 “intensity” factors, such as degree of effect on public health and safety, unique geographical characteristics, and whether the risks are uncertain or unknown.

 

Here, the court upheld the BLM’s findings in its EA that the power plant expansion would cause no significant impact on air and water quality, migratory birds and wildlife, or cultural resources; therefore, a full EIS was not required.

 

In upholding the BLM’s findings, the court stated that a federal agency’s decision may be set aside only if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”  It noted that this standard of review was deferential and did not allow a court to substitute its judgment for that of the agency.

 

The Ninth Circuit’s opinion is a significant victory not only for the BLM in this case, but also for the power company and others who sought to rely on the BLM’s determination in its EA that the power plant expansion would cause no significant impact on the environment and that a full – and more expensive – EIS would not be required.  The opinion also restates the need for judicial deference to a federal agency’s factual findings and regulatory interpretations where those actions are not arbitrary or capricious. 

Topics:  Bureau of Land Management, Energy, Environmental Assessments, NEPA, Power Plants

Published In: Construction Updates, Energy & Utilities Updates, Environmental Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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