United States District Court, D. Vermont
VERMONTERS FOR A CLEAN ENVIRONMENT, INC., JUSTIN LINDHOLM, ANNETTE SMITH, JOHN DAVID GEERY, THOMAS E. SHEA, GEORGE S. HALFORD, KATHY HALFORD, and TYLER RESCH, Plaintiffs,
COLLEEN MADRID, Forest Supervisor of the Green Mountain National Forest, BOB BAYER, Project Coordinator of the Deerfield Wind Project, Manchester District, and CHARLES L. MYERS, Regional Forester: of the Eastern Region, in their official capacities as employees of the U.S.D.A. Forest Service, Defendants, DEERFIELD WIND, LLC, Intervenor Defendant
[Copyrighted Material Omitted]
For Vermonters for a Clean Environment, Inc., Justin Lindholm, Annette Smith, John David Geery, Thomas E. Shea, George S. Halford, Kathy Halford, Tyler Resch, Plaintiffs: Patrick J. Bernal, Esq., Robert E. Woolmington, Witten, Woolmington & Campbell, P.C., Manchester Center, VT; Stephen L. Saltonstall, Esq., Manchester Center, VT.
For Colleen Madrid, Forest Supervisor of the Green Mountain National Forest, in her official capacity as employee of the U.S.D.A. Forest Service, Bob Bayer, Project Coordinator of the Deerfield Wind Project, Manchester District, in his official capacity as employee of the U.S.D.A. Forest Service, Kathleen Atkinson, Regional Forester of the Eastern Region, in her official capacity as employee of the U.S.D.A. Forest, Defendants: Cynthia S. Huber, Esq., United States Department of Justice, Environmental and Natural Resources Division, Washington, DC; Nikolas P. Kerest, United States Attorney's Office, District of Vermont, Burlington, VT.
For Deerfield Wind, LLC, Intervenor Defendant: Brian S. Dunkiel, Geoffrey H. Hand, Esq., Dunkiel Saunders Elliott Raubvogel & Hand, PLLC, Burlington, VT.
MEMORANDUM AND ORDER (Docs. 78, 80, 82)
Honorable J. Garvan
Murtha, United States District Judge
Plaintiff Vermonters for a Clean Environment, Inc., along with individual plaintiffs, (collectively, Plaintiffs) commenced
this action under the Administrative Procedure Act in April 2012, raising claims under the National Environmental Policy Act and the Wilderness Act. (Doc. 1.) Plaintiffs oppose the United States Department of Agriculture Forest Service (the " Forest Service" ) decision to issue a special use permit to Deerfield Wind, LLC for the occupancy and use of an area of the Green Mountain National Forest in southern Vermont near the George D. Aiken Wilderness (Aiken or " Aiken Wilderness" ) where Deerfield Wind plans to construct a wind farm. They seek an injunction prohibiting the Forest Service fro issuing a special use permit to Deerfield Wind, LLC or a remand to the Forest Service for further environmental study. (Doc. 71 (Am. Compl.).)
In November 2013, Plaintiffs filed an amended motion for summary judgment. (Doc. 78.) Defendants Colleen Madrid, Forest Supervisor of the Green Mountain National Forest, Bob Bayer, Project Coordinator of the Deerfield Wind Project, and Kathleen Atkinson, Regional Forester of the Eastern Region, in their capacities as employees of the Forest Service (collectively, Defendants), oppose the motion and have filed a cross-motion for judgment. (Doc. 80.) Intervenor-Defendant Deerfield Wind, LLC has also filed a cross-motion for judgment on the administrative record. (Doc. 82.) The motions are fully briefed and the Court heard oral argument on July 23, 2014. Because the Forest Service's decision was not " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), the Court denies Plaintiffs' motion, grants Defendants' motion, and denies as moot Intervenor-Defendant's motion.
Plaintiffs challenge the Forest Service Record of Decision (ROD) authorizing issuance of a special use permit for use of the Green Mountain National Forest (GMNF) for the installation of a utility-scale wind turbine facility. Deerfield Wind, LLC originally submitted a proposal for land use authorization to construct and operate a wind energy facility consisting of twenty to thirty wind turbine generators on GMNF land in March 2004. As required, Deerfield Wind also submitted an application to the Vermont Public Service Board (PSB). The project was refined and Deerfield Wind proposed to build seventeen 2.0 megawatt (MW) wind turbine generators, seven to be placed on the east side of Route 8 -- on the same ridgeline as an existing wind facility in Searsburg -- and ten on a separate ridgeline on the west side of Route 8 (the " proposed action" or " proposed project" ).
The Forest Service completed a draft environmental impact statement (EIS) in September 2008, a supplemental draft EIS in December 2010, and a Final EIS (FEIS) (Administrative Record (AR) 03C.00490-03C.00985) and the ROD (AR 03D.00001-03D.00071) in January 2012. Forest Service Supervisor Colleen Madrid's ROD approved an alternative to the proposed project consisting of fifteen turbines, seven on the ridgeline east of Route 8 and eight on the ridgeline west of Route
Following the ROD, the Forest Service issued supplemental information reports (SIR) on night lighting of the wind turbine towers (AR 03D.00089-03D.00091 (SIR (April 2012))), bat mortality estimates caused by white-nose syndrome (AR 03D.00108-03D.00111(SIR (June 2012))), and turbine blade length (AR 18F.00061-18F.00090 (SIR (July 2013))).
Plaintiffs seek wide-ranging declaratory and injunctive relief, requesting the Court permanently enjoin construction of the project and prohibit the Forest Service from issuing a special use permit or, in the alternative, to enjoin construction of the project and prohibit the Forest Service from issuing a special use permit until further environmental study upon remand to the Forest Service. Plaintiffs contend the Forest Service has violated the National Environmental Policy Act and the Wilderness Act. The Court considers Plaintiffs' multiple arguments below.
III. Standard of Review
Because the National Environmental Policy Act (NEPA) and the Wilderness Act do not provide for a private right of action, the Administrative Procedure Act (APA), 5 U.S.C. § § 701-706, provides for judicial review of challenges to final agency action. Brodsky v. U.S. Nuclear Regulatory Comm'n, 704 F.3d 113, 119 (2d Cir. 2013) (NEPA); Wyoming v. U.S. Dep't of Agric., 661 F.3d 1209, 1226 (10th Cir. 2011) (Wilderness Act). Under the APA, the Court may set aside an agency's decision only if it is " found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, . . . [or] without observance of procedure required by law." 5 U.S.C. § 706(2)(A), (D). Under this deferential standard of review, the Court " cannot substitute [its] judgment for that of the agency." Natural Res. Def. Council v. FAA, 564 F.3d 549, 555 (2d Cir. 2009). Nevertheless, the Court's " inquiry must be searching and careful." Id. (internal quotation marks and citations omitted). The agency must have " examine[d] the relevant data and articulate[d] a satisfactory explanation for its action," Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), and its decision must reveal a " rational connection between the facts found and the choice made." Id. (internal quotation marks and citation omitted). Plaintiffs bear the burden of showing that the agency action was arbitrary or capricious. Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976).
" Generally, a court reviewing an agency decision is confined to the administrative record compiled by that agency when it made the decision." Nat'l Audubon Soc'y v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997) (citing Fl. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1973)). The Court previously declined Plaintiffs' invitation to consider extra-record materials. See Doc. 44. Accordingly, the scope of the evidence upon which the pending motions will be decided is the administrative record (AR) compiled by the agency.
The National Environmental Policy Act (NEPA), 42 U.S.C. § § 4321-4347, a procedural statute, is designed to " encourage productive and enjoyable harmony between man and his environment . . . [and to] prevent or eliminate damage to the environment." 42 U.S.C. § 4321. It requires an agency prepare an environmental impact statement before authorizing action " significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). An EIS must " provide full and fair discussion of significant environmental impacts and . . . inform decision
makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1; see 42 U.S.C. § 4332(2)(C). The " human environment" encompasses " aesthetic, historic, cultural, [and] economic" considerations in addition to " ecological" concerns. 40 C.F.R. § 1508.8(b).
NEPA mandates a process rather than a particular result: " [It] does not command an agency to favor any particular course of action, but rather requires the agency to withhold its decision to proceed with an action until it has taken a 'hard look' at the environmental consequences." Stewart Park & Reserve Coal., Inc. v. Slater, 352 F.3d 545, 557 (2d Cir. 2003). NEPA does not constrain an agency from deciding " other values outweigh  environmental costs" so long as " the adverse environmental effects of the proposed action are adequately identified and evaluated." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). " The court's role is to ensure that NEPA's procedural requirements have been satisfied, not to 'interject itself within the area of discretion of the executive as to the choice of the action to be taken.'" Fund for Animals v. Kempthorne, 538 F.3d 124, 137 (2d Cir. 2008) (quoting Kleppe, 427 U.S. at 410 n.21). Thus, the Court's review must " focus primarily on the procedural regularity of the decision, rather than on its substance." Brodsky, 704 F.3d at 118-19 (internal quotation marks and citation omitted). An EIS is not " inadequate if the agency has made an adequate compilation of relevant information, has analyzed it reasonably, has not ignored pertinent information, and has made disclosures to the public." Sierra Club v. U.S. Army Corps of Eng'rs, 701 F.2d 1011, 1029 (2d Cir. 1983).
Plaintiffs argue the Forest Service " has failed to study adequately or fully disclose the harm to the environment the project would cause." (Doc. 78-1 at 1.) They raise five specific claims alleging Defendants violated NEPA, including: (1) bias and conflict of interest; (2) impacts on the George D. Aiken Wilderness; (3) purpose, need and range of alternatives; (4) blasting impacts; and (5) impacts on bats. See Am. Compl. (Counts 2-6).
1. Bias and Conflict of Interest
Plaintiffs argue Defendants violated 40 C.F.R. § 1506.5(c) by selecting John Hecklau of EDR Companies to draft the EIS because of his concurrent work for the parent company of Deerfield Wind, LLC and because the developer paid for his services. (Am. Compl. at 16-17; Doc. 78-1 at 25-28; Doc. 83 at 26-30.) Defendants disagree. (Doc. 80-1 at 54-60.) Section 1506.5(c) provides an EIS " prepared pursuant to the requirements of NEPA shall be prepared directly by or by a contractor selected by the lead agency." 40 C.F.R. § 1506.5(c). EDR Companies was selected ...