On May 27, 2015, the U.S. Court of Appeals for the Ninth Circuit provided some additional guidance as to what constitutes agency action for purposes of triggering the consultation requirement under the Endangered Species Act (ESA). The court held that although the U.S. Bureau of Land Management (BLM) was required to consult with the U.S. Fish and Wildlife Service (FWS) on the effects of a proposed road project on BLM land, BLM was not required to consult on the effects of a proposed wind project that would be accessed via the federal road project. Sierra Club v. BLM, Case No. 13-15383.
While both projects are to take place near Tehachapi, California, only the federal road project would take place on BLM land; the wind project would be built entirely on private property. To facilitate access to the wind project, the developer applied to BLM for right-of-way over federal land in order to connect to an existing state highway. The developer also requested authorization to place underground power and fiber optic communication lines in the right-of-way to connect to the energy grid. In the application, the developer also explained that there was an alternative route for accessing the wind project that was located completely on private property, but it was rejected by the developer because of the significant environmental impacts associated with the bulldozing, blasting, grading and tree clearing necessary for construction of the private road. If, however, BLM denied the developer's application, the developer stated that it would proceed with construction of the private road in order to access the wind project.
Thereafter, BLM issued and prepared an environmental assessment for the proposed federal road project, finding that the project would have no significant environmental impacts. BLM also found that the federal road project had independent utility separate from providing access to the wind project, as it would provide dust control, reduce erosion, and reduce unauthorized access to a national trail located near the proposed private road. In light of this independent utility, and because the wind project could be built without the federal right-of-way, BLM concluded that while it had to consult on the federal road project, consultation was not required for the wind project.
After BLM issued the permit for the federal road project without consulting with FWS on the wind project, a number of environmental groups challenged BLM's actions in federal court. The environmental groups alleged that BLM had failed to comply with the ESA's consultation requirement, and that BLM was obligated under the National Environmental Policy Act to prepare an Environmental Impact Statement for the project. The Ninth Circuit rejected both challenges, affirming the decision of the lower court.
With respect to the failure to consult claim, the Ninth Circuit explained that the consultation requirement is only triggered when the direct or indirect effects of an agency action may affect a species or its critical habitat. And in order to make this determination, the federal agency must consider "the direct and indirect effects of [its] action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with the action . . . ."
In this case, because the private road project was a viable alternative, and therefore the wind project was not dependent on the existence of the federal road project, the Ninth Circuit found the wind project was neither a direct nor indirect effect of the federal road project. The Ninth Circuit also found that the wind project and federal road project were not interrelated or interdependent, because "neither is an integral part of the other, neither depends on the other for its justification, and each has utility independent from the other." Accordingly, the Ninth Circuit concluded that as the wind project and federal road project were separate projects, and BLM did not authorize or approve any action with respect to the wind project, there was no agency action triggering BLM's obligation to consult under the ESA.
Ben Rubin is chair of Nossaman’s Environment & Land Use Group. Ben assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters ...Full Bio | All Posts | Email | 949.833.7800
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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