The Ninth Circuit Gets Serious About Data

In reversing the lower court, a panel of the Ninth Circuit just laid down the law about suppositions and extrapolations instead of hard data. Where wildlife impacts are concerned, the message is simple: it doesn’t suffice for NEPA purposes.

In a case that is sure to garner wider attention eventually, the Ninth Circuit just reversed the district court’s summary judgment for the defendants in Oregon Natural Desert Ass’n v. Jewell, No. 13-36078 (9th Cir. 2016).  The issue was simple: in deciding that the impacts of a new transmission corridor would be acceptable (or minimal) to Greater Sage Grouse in the area, would extrapolations from surveys of other, similar areas suffice for purposes of the National Environmental Policy Act’s “hard look” standard?  The United States District Court for the District of Oregon thought so.  But the Ninth Circuit emphatically disagreed.  This post explains the importance of the ruling to NEPA and why, for climate change particularly, this precedent could be big news.

When What’s Available Just Isn’t Good Enough?

Ordinarily, agencies conducting NEPA reviews need not produce new information or data for their environmental reviews.  The text of NEPA itself says nothing about such a duty and the Council on Environmental Quality’s (CEQ) rules aren’t much help either.  For full-blown environmental impact statements (EISs), in fact, the rules are pretty clear that, where information is incomplete and/or the costs of obtaining that information might be “exorbitant,” the agency need only disclose the information deficit.  It need not remedy that deficit.

Might there be exceptions, though?  This case arose from Columbia Energy Partners’ application to build a large (100MW) wind farm along Steen Mountain in Harney County, Oregon.

Columbia Energy Partners describes this site as remote, so remote that it’s “90 miles to a gallon of milk.” (Harney County is home to the Malheur National Wildlife Refuge—yes that one.)

To get the electricity out, thus, a new 230 kilovolt transmission line is needed and it would run through BLM-administered lands.  One problem with the project, though: it may disturb prime wintering habitat for the Greater Sage Grouse (GSG), a species that has garnered a lot of attention over the last decade.  GSG numbers have dwindled just as more and more sagebrush habitat has become drill pads, roads, and other energy infrastructure throughout the interior West.  (The U.S. Fish & Wildlife Service elected not to list the species pursuant to the Endangered Species Act after a protracted review, a decision that has since gone into litigation.)

So energy/GSG conflicts are nothing new for BLM.  The court described the conflict:

The North Route Line [the preferred alternative] would be approximately 46 miles long, connecting an electric substation at the Echanis site with an interconnection station near Crane, Orgeon. . . .[T]he [final EIS] acknowledged the ‘potential conflict between wind energy development and [GSG] winter foraging habitats, because the windswept ridges that keep sagebrush exposed during winter months could also be ideal locations for wind energy development.’

Slip Op. at 8-9.

Of course, whether it’s a drill pad or a wind turbine, habitat loss is habitat loss.  This problem stems from the fact that, throughout the GSG’s enormous range the list of threats/disturbances of its habitat is enormous and growing.  And there’s only so much we know about its habitat demands and what disturbances are truly incompatible with the animal’s survival.  The court summed up BLM’s mistake.

Despite th[e] concern, no surveys were conducted to determine if [GSG] are present at the Echanis site during the winter months of November through April.  Instead, the BLM assumed, based on surveys done at the nearby East Ridge and West Ridge sites, that no grouse use the Echanis site during winter.

Slip Op. at 9.echanis-project-site-map

As Columbia’s own map illustrates, there’s quite a range of habitats at issue here and making assumptions about the target area—Echanis—from surveys of different ridges (some of them miles away) might not be a “reasonable extrapolation” (as the EIS put it) so much as a failure to take a hard look (or worse).

When a group of environmental nonprofits sued BLM and the Department of Interior back in 2013 for adopting the EIS with such a spatially inexplicit analysis of several critical areas—the Steens Mountain region is prime GSG habitat that also happens to be outside the interior West’s oil/gas boom—the claims naturally gravitated toward the substantive adequacy of the EIS.

Outside the Ninth Circuit, there’s little precedent for remanding a NEPA document where the alleged defect is that the agency failed to collect new data.  More typical—again, outside the Ninth Circuit—is the pallid and rather unsatisfying recourse to a “reasonableness” standard so characteristic of arbitrariness review.  See, e.g., Webster v. U.S. Dept. of Ag., 685 F.3d 411 (4th Cir. 2012).

But within the Ninth Circuit, the claim is routine—and is now routinely garnering serious judicial attention.  See Northern Plains Resource Council v. Surface Transp. Bd., 668 F.3d 1067, 1084-85 (9th Cir. 2011); Lands Council v. Powell, 395 F.3d 1019, 1030-31 (9th Cir. 2005); National Parks & Conserv. Ass’n v. Babbitt, 241 F.3d 722 (9th Cir. 2001); Blue Mtns. Biodiv. Project v. Blackwood, 161 F.3d 1208, 1212-14 (9th Cir. 1998); Cabinet Resources v. U.S. Fish & Wildlife Serv., 465 F. Supp.2d 1067, 1100 (D. Mont. 2006).

So which approach is better?

When NEPA Should Require the Acquisition of ‘New Data’

The Ninth Circuit’s approach is not without a risk of abuse and judicial overreach, although it is also not so far from what a literal interpretation of CEQ’s regulation would require.  CEQ states that when “incomplete information relevant to reasonably foreseeable significant adverse impacts is essential to a reasoned choice among alternatives and the overall costs” of acquiring that information aren’t “exorbitant,” then the agency should acquire the information before proceeding.  See 40 C.F.R. § 1502.22(b).

The three critical elements in that calculus—the possible consequences, the probabilities thereof, and how they would affect an alternatives decision—should probably inform any interpretation of this growing Ninth Circuit jurisprudence, too.  While the courts’ enforcement of the disclosure mandate in the CEQ rules is rather uneven, it does occasionally result in a remanded EIS.  See, e.g., North Carolina Wildlife Fed’n v. N.C. Dept. of Transp., 677 F.3d 596 (4th Cir. 2012).

In the Oregon Natural Desert Ass’n case, the habitat losses to resident GSG populations could be significant, and it is impossible to know how likely those losses are without surveying the very ridge which the applicant (carefully? negligently?) avoided surveying.

The court referred to the missing information as “baseline” data and suggested that baseline data is somehow special—its acquisition is somehow obligatory in certain NEPA cases.  But that is likely a distinction without a difference.  The extrapolation made and relied upon in the EIS was garden variety.  Its temporal situation seems unimportant to the basic question: could real data be acquired and, if so, why weren’t they?

Whatever the development project, of course, if this truly were some general obligation to collect data where none exist, it would be big news, indeed.  Many substantive statutes set specific duties of this sort before applications can be granted or denied.  But many do not and, if NEPA were to do so, that would end up being a general default.  Especially where climate change is concerned, the need for hard data in advance of further (energy) development is acute and a NEPA default that it must be collected would surely change behaviors.  Too many NEPA “hard looks” are looks at matters lacking basic information that result in a kind of ‘we don’t know what is jeopardized by our actions because there’s no information’ cop out.

If Oregon Natural Desert Ass’n becomes the precedent—even if only in the Ninth Circuit—for a kind of duty remedying that outcome, this will have been a momentous occasion in NEPA history for sure.

{Image: Greater Sage Grouse  ©Wikipedia}

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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