Energía Sierra Juárez: Cultural, Climate and Wildlife Crossroads

Locals' lawsuit against a major new wind farm just over the Mexican border raises tricky NEPA claims.

Most greens applaud California’s ambitious renewable energy mandates.  The state’s ultimatum to electricity providers: source at least half of your power from renewables—with some slack in what comprise “renewables”—by 2030 or else.  What they are slowly realizing, though, is how the market responds to such ultimatums.  The Energía Sierra Juárez (ESJ)  project just south of the border in Baja California is an example. ESJ Map

The concept was simple: build a gigantic wind farm just outside the reach of U.S. environmental laws which will sell all of its electricity to a major southern California electricity marketer.  San Diego Gas & Electric’s deal with IENova is a 20-year, $820M power purchase agreement.   At about 155 megawatts (which came on line this summer), it’s already big as wind installations go.  But it’s set to get a lot bigger.  As KPBS detailed recently, the parties plan to grow the facility by about 700% over the next 20 years.

Indeed, the “parties” to this deal are really one: Sempra Energy owns them both.

As our story noted in August, utility-scale wind presents some tough choices.  The averted greenhouse gas emissions such projects represent are a welcome alternative to fossil fuel growth.  But for agencies that deal primarily with site-specific risks and degradation, the choices are particularly hard.  A big wind installation, setting aside its GHG virtues, is a lot like other industrial installations.  It’s loud, imposing, and creates quite a disturbance while being built.

Erecting that large an installation in the Sierra de Juárez high desert, indeed, would raise Endangered Species and Migratory Bird Treaty Act issues—supposing those laws apply.  Much like the gigantic Altamont Pass wind farm in California, ESJ directly impacts resident wildlife habitat, causes bird and bat kills at the rotors’ edge, fragments the larger landscape with its connective infrastructure, and neighbors some quite splendid natural areas.  Indeed, judging from Altamont Pass’s record, when poorly planned installations like this can be an environmental albatross (so to speak).  (The 1970s’ engineering that went into Altamont Pass was fatally flawed for raptors, especially Golden Eagles.  And the Sierra de Juárez mountains are no less sensitive to such blunders.)

But all of these local environmental impacts from ESJ will be in Mexico, just beyond the reach of the Endangered Species Act and the Migratory Bird Treaty Act—and also perhaps NEPA.  The sliver of a chance that NEPA was violated here stems from the fact that Sempra needed a “presidential permit” for the border crossing linking ESJ to the Southern California grid.  The U.S. Department of Energy granted that permit in August 2012.

NEPA: Enemy of Big Wind?

The thing that is so fascinating and so frustrating about NEPA is that it applies without passion or prejudice.  The same way that it has impeded more fossil fuel infrastructure is exactly how it obstructs the building of utility-scale wind: with project-killing delays and public transparency.  As we’ve noted before, any “stop, study, and deliberate” requirement like NEPA is going to help those making a case against some discrete action, program, plan, or project more than anything else.

The wrinkle with ESJ, of course, is whether its localized effects in Mexico should factor into the NEPA documents/processes the U.S. Department of Energy prepared or should prepare as ESJ is expanded.  As it happened, DOE prepared an extensive EIS for the presidential permit.  The public comment period was quite short (about 2 weeks), the statement of purpose and need for the EIS was useless (“The purpose and need for DOE’s action is to respond to the ESJ request for a Presidential permit.”), the alternatives considered were rather anemic (a no action alternative and a handful of variations on the routing and circuitry ESJ proposed)—and, of course, it excluded completely the impacts of the wind farm itself.

NEPA, Extraterritoriality and the Renewables Rush

ESJ raises the question whether effects that will occur primarily in an another country (raptors cross the border, whether there’s a wall or not) rightly belong in that process.  Executive Order 12114, issued by President Carter, remains in effect and its apparent answer is not. The order broke different types of extra-territoriality into categories: the global commons was one thing (ordinarily, an EIS would be appropriate), the sovereign territory of another country (ordinarily, a summary environmental review if at all) something else.

A small handful of lower court cases notwithstanding, the judicial answer to the question has also been, essentially, notSee Daniel R. Mandelker, NEPA Law and Litigation § 5:18 (2015 ed.).  Interestingly, the executive order predates a landmark Supreme Court case squarely holding that, unless stated expressly by the statute itself, U.S. statutes ordinarily don’t “apply” beyond U.S. soil.  See EEOC v. Arabian America Oil Co., 499 U.S. 244 (1991).   Had the executive branch waited, in other words, it might’ve gotten all the flexibility and agency discretion 12114 allocated to agencies from SCOTUS.

Of course, given the DOE’s choice to prepare an EIS and given the precise chain of events at issue, a more accurate picture may be the one where US actions with significant environmental ramifications here at home—as well as significant ramifications in a neighboring country—combine to provoke a full and complete assessment of the environmental trade-offs afoot.  After all, California’s now urgent demand for utility-scale renewables is why Sempra cooked up this scheme in the first place.

If so, the most analogous case may be Swinomish Tribal Community v. FERC, 627 F.2d 499 (D.C. Cir. 1980).  There the challenge was to a FERC permission for the enhancement of the Ross High Dam on Washington’s Skagit River.  The enhanced dam would flood Lake Ross into an additional 4700 acres in the Upper Skagit River Valley in Canada.  Being the permitting authority, the Federal Energy Regulatory Commission undertook a NEPA review of several real alternatives thereto (notwithstanding the applicant’s avowed, unchallenged demand for more electricity).  The court heard several claims going to the EIS’s inadequacy as to the effects in Canada.  Now the court ultimately concluded that (1) the statement of purpose and need, (2) the range of alternatives, and (3) the degree of analysis of the extraterritorial effects were adequate.  FERC won the case.  But the court in its conclusion made clear why:

In short, no arbitrary action having been claimed or shown and having found that the Commission fully considered the environmental consequences of its decision, we cannot interject ourselves “within the area of discretion of the executive as to the choice of the action to be taken.” On this record, we cannot substitute our judgment for that of the Commission.

627 F.2d at 516 (quoting Strycker’s Bay Neigh. Council v. Karlen, 444 U.S. 223 (1980).

With no demand from southern California and no presidential permit from DOE, ESJ wouldn’t have happened.  Its planned massive expansion wouldn’t happen.  (The project isn’t even plugged into the Mexican grid!)  And so perhaps the effects from this action that are occurring now and will occur in the future in Mexico should be a part of the NEPA process here in the US.  DOE’s election to do so might well enhance our understanding of the tradeoffs to be struck between utility-scale wind and its (often significant) localized environmental costs.  So this lawsuit may be one to watch!

 

{Image: Sierra de Juárez mountains, © Burns & McDonnell—Sempra’s consultant on ESJ}

 

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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