Beveridge & Diamond
 

Court Finds No Irreparable Harm to Desert Tortoise and Allows Ivanpah Solar Project to Go Forward

Beveridge & Diamond, P.C., July 7, 2011

On June 30, 2011, a federal judge denied a plaintiff’s attempt to obtain a temporary restraining order (“TRO”), to halt the development of BrightSource Energy Inc.'s Ivanpah solar electric energy facility in the Mojave Desert.  Applying the well-established legal standard for an injunction, the court determined that plaintiff had not met its burden of proof.  The court’s order is available here

At issue is the construction of a 370-megawatt solar thermal power plant to be located on 3,582 acres of land leased by the United States Bureau of Land Management (“BLM”).  In April, the Department of Energy approved a loan guarantee for the project.  Despite apparent forward momentum, in April, BLM temporarily suspended activity on much of the construction citing issues about protection of the desert tortoise, which is on the federal endangered species list.  BLM later allowed the construction to resume, after the U.S. Fish and Wildlife Service issued a new biological opinion, and adjusted both the take limits and tortoise handling procedures.  In a detailed arrangement for protecting the tortoise, the government’s biological opinion sets forth a plan for “translocation” of desert tortoises to a suitable alternative habitat, away from the construction site.  Monitoring of the tortoises after relocation would continue for at least five years. 

Plaintiff Western Watersheds Project’s complaint asserts that “in an ill-conceived rush to accommodate massive renewable energy projects vying for multi-billion dollar federal tax credits” the federal defendants rushed to approve the solar thermal power plant.  Plaintiff asserts violations of the National Environmental Policy Act, the Endangered Species Act, the Federal Land Policy and Management Act and the Administrative Procedure Act over alleged deficiencies in the government's environmental review of the project, and in seeking a TRO, plaintiff cited information about the tortoise population that the government had not considered.  

However, in its June 30, 2011 opinion, the court observed that, “Plaintiff’s evidence that one tortoise has died as a direct result of fence-building at Ivanpah falls well short of a showing of likely irreparable harm for purposes of granting a TRO.”  With a full hearing to be held in August at which the court will more broadly assess the impacts of the Ivanpah project, the court has kept the door open for plaintiff to try again to press its claims.  

For more information on alternative energy development projects, please contact Pamela Marks at (410) 230-1315 or pmarks@bdlaw.com; Stephen Richmond at (781) 416-5710 or srichmond@bdlaw.com; or Peter Schaumberg at (202) 789-6043 or pschaumberg@bdlaw.com.

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