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Spotlight

The CBD’s Tortoise Threat

The conservationist group thinks it has the goods on the Bureau of Land Management’s new Western solar plan.

Tortoise
Alexander Mils / Getty Images / Heatmap

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!

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Q&A

Will Blue States Open Up Their Wallets for Renewables?

A conversation with Heather O’Neill of Advanced Energy United.

The Fight Q&A subject.
Heatmap Illustration

This week’s conversation is with Heather O’Neill, CEO of renewables advocacy group Advanced Energy United. I wanted to chat with O’Neill in light of the recent effective repeal of the Inflation Reduction Act’s clean electricity tax credits and the action at the Interior Department clamping down on development. I’m quite glad she was game to talk hot topics, including the future of wind energy and whether we’ll see blue states step into the vacuum left by the federal government.

The following conversation has been lightly edited for clarity.

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Spotlight

The Anti-Renewables Movement is Coming for Your Wires

The Grain Belt Express was just the beginning.

Oklahoma.
Heatmap Illustration/Getty Images

The anti-renewables movement is now coming for transmission lines as the Trump administration signals a willingness to cut off support for wires that connect to renewable energy sources.

Last week, Trump’s Energy Department with a brief letter rescinded a nearly $5 billion loan guarantee to Invenergy for the Grain Belt Express line that would, if completed, connect wind projects in Kansas to areas of Illinois and Indiana. This decision followed a groundswell of public opposition over concerns about land use and agricultural impacts – factors that ring familiar to readers of The Fight – which culminated in Republican Senator Josh Hawley reportedly asking Donald Trump in a meeting to order the loan’s cancellation. It’s unclear whether questions around the legality of this loan cancellation will be resolved in the courts, meaning Invenergy may just try to trudge ahead and not pick a fight with the Trump administration.

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Hotspots

Vineyard Wind Is Besieged Again

And more of the week’s most important conflicts around renewable energy.

The United States.
Heatmap Illustration/Getty Images

1. Nantucket County, Massachusetts – The fight over Vineyard Wind is back with a vengeance. But can an aggrieved vacation town team up with conservative legal activists to take down an operating offshore wind project?

  • The offshore wind project, which is under construction and currently provides power to Massachusetts, was threatened this week when Nantucket signaled it may sue Vineyard Wind over a laundry list of demands related to the facility and last year’s blade breakage. Then less than 24 hours later, the Texas Public Policy Foundation – a conservative legal advocacy group – filed a petition to the Interior Department requesting it not only reconsider previous permits issued for Vineyard Wind but also halt operations at the site.
  • It’s hard to ignore the timing here: before this flurry of activity, the Interior Department released a new secretarial order that laid out many ways it would potentially go after wind facilities. One method would be potentially settling lawsuits filed against both offshore and onshore wind projects in favor of plaintiffs.
  • We are still waiting to see if Interior will take up the Vineyard Wind petition. But this activity suggests that opponents of offshore wind feel increasingly emboldened by the anti-renewables direction that Trump has taken in recent weeks, and we may soon find out if their aspirations for killing operating projects are well-founded.

2. Henry County, Virginia – A fresh fiasco around a solar farm is renewing animus against solar projects in the Commonwealth of Virginia.

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