The CBD’s Tortoise Threat

The Biden administration is trying to open a lot more Western territory to utility-scale solar. But they are facing a conservationist backlash that may be aided by the views of scientists within the federal government.

Yesterday, activists pushed back against the environmental review of the Bureau of Land Management’s new Western solar plan that would make more than 31 million acres available for utility-scale solar applications across 11 states. The BLM is trying to meet the next two decades of demand for renewable electricity while avoiding the kinds of environmental and social conflicts that stymie individual projects. But it appears key stakeholders filed protests against the environmental review, including counties that would host new solar farms and Republican politicians, as well as the whistleblower advocacy group PEER we wrote about last week.

Today, however, we’re going to focus on the protest filed by the Center for Biological Diversity, which submitted to BLM what amounted to the contours of a lawsuit.

The protest argued the environmental review of the plan not only failed to adequately protect the Mojave desert tortoise – a species protected as “threatened” under the Endangered Species Act – but appeared to make “arbitrary” decisions to open potential tortoise habitat and travel areas. Per the protest, the review did so without clearly explaining how it took into account guidance from the Fish and Wildlife Service, the primary species protection agency.

Zooming in, scientists at the Service said in a power-point presentation dated April of this year (that CBD happily pointed out is available online) they supported excluding occupied tortoise habitat and translocation sites from the solar plan. Employees at the Service also gave CBD guidance documents they submitted over the past year to the Bureau that outlined “extensive criteria for exclusion” that activists say were not followed and weren’t reflected in the review documents previously released by the government.

Why does this matter? Well, it could determine whether the decisions relevant can hold up in court. CBD is using the word “arbitrary” because it’s a standard followed under the Administrative Procedures Act, which forces government officials to show their work and demonstrate they considered all available information submitted to them.

CBD’s Patrick Donnelly – who we spoke with at length in our first edition of The Fight – authored the protest filing. Donnelly told me the acreage relevant to the tortoises totals only about 200,000 acres of the almost 12 million that would be available for solar under the plan, so the grievance shouldn’t be a herculean endeavor to address.

“We’re trying to go into the protest process with an open mind, not cynically,” he told me, “and make this plan a lot less harmful.”

Still, if CBD escalates, the Bureau will have to show how it went from getting these recommendations to landing on the acreage it opened to solar. It could also shake the certainty of developers with applications within the solar plan area already dealing with tortoise protection advocates on the individual project level, like EDF Renewables’ Bonanza Solar project north of Las Vegas which has a draft environmental review in public comment.

Proving a government decision is arbitrary requires demonstrating the move was not “reasonable and justifiable,” Ankur Tohan, an attorney at K&L Gates, told me. Usually the bar for the government to prove itself is “relatively low,” and courts are “very deferential to an agency” as long as “the agency’s action took into account the relevant factors.” The problems arise for the government if “the internal analysis is contradictory,” Tohan said.

Personally I’m having trouble figuring out how the Service’s initial recommendations were internalized at BLM – though I am assuming they were handled in some way, as otherwise the Service would presumably stand in the way. BLM does acknowledge that “design features and project guidelines” were modified to “better avoid impacts to species where not excluded” and said developers “shall configure solar development projects to maintain existing desert tortoise habitat.”

I asked BLM to explain this, but they declined to answer questions on the matter. “The BLM has no comment at this time,” BLM press secretary Brian Hires said, citing the need to “review all protests.” So I guess we’ll have to wait and see!