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Sage Grouse Halt Wind Farm in 9th Cir. Environmental Review Case

By Casey C. Sullivan, Esq. on May 26, 2016 | Last updated on March 21, 2019

The need for clean, renewable energy is growing ever more urgent in the face of worsening climate change predictions. But large scale green energy developments aren't without their environmental costs. Wind turbines can turn into deadly Cuisinarts when placed in a bird's migratory path; sprawling solar farms can displace endangered desert wildlife.

And such was the conflict in a recent Ninth Circuit case, in which the court was asked to determine if plans for an Oregon wind farm adequately calculated the impact of the project on the greater sage grouse. They had not, the court found, sending the project back for further review.

Sage Grouse v. Wind Farms

The greater sage grouse used to be common throughout the American West, but their numbers have been steadily declining as the sagebrush habitat they depend on have been developed. The Echanis Wind Energy Project is a planned 104-megawatt wind farm that would consist of 40 to 69 turbines. The two collide in the Steens Mountains at the southeastern corner of Oregon, where sage grouse habitat is abundant but where the Echanis project would require significant development of that land.

The project is on private land, but the right-of-way for its powerlines passes through Bureau of Land Management land, subjecting the turbines' construction to review under the National Environmental Policy Act. And the main concern of that review has long been the project's impacts on the sage grouse. But, environmentalists argued, that review failed to fully examine the project's potential effects on the bird.

The Oregon Natural Desert Association and Portland Audubon Society eventually sued, arguing that the BLM simply hadn't met it's NEPA obligations. While the project's Final Environmental Impact Statement acknowledged "potential conflict" between the development and sage grouse habitat, "no surveys were conducted" and BLM simply assumed that sage grouse were not present, the Ninth wrote. Similarly, ONDA had argued that the BLM had failed to properly assess conditions at the Echanis site, taking information from nearby sites instead.

Those failures resulted in inaccurate data, which rendered the FEIS's assumptions "arbitrary and capricious," according to the court. And while the Ninth acknowledged that the BLM is "owed special deference" for scientific analysis, that deference "does not excuse the BLM from ensuring the accuracy and scientific integrity of its analysis."

A Needed Win for the Sage Grouse

For a bird, the sage grouse is unusually politicized. Conservationists have long urged Endangered Species Act protection for the bird, both to ensure its continued existence and recovery, and to protect the threatened habitat it lives on. ESA status for the sage grouse could limit environmentally damaging projects in wild lands, for example, be they wind farms or cattle grazing.

As a result, there has been a long and ongoing battle over the bird's status, with the Fish and Wildlife Service acknowledging that ESA status was warranted in 2010, but declining to grant such status in 2015. But, while that decision was a blow to the sage grouse, one currently facing litigation, this rare win for the bird in southern Oregon shows that not all avenues for protection have been foreclosed.

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