Legal Challenge Filed Against Six Solar Projects in California's Desert

A coalition of Native American and civic groups filed a legal challenge against the Department of the Interior for approving six massive solar power projects in California's desert, alleging that the Department did not conduct adequate environmental reviews and did not properly consult with Native American tribes.  The legal challenge points to several Federal statutes that the Department of the Interior ignored in its "fast track" approval of the solar projects.  The collective intent of the statutes is to ensure that the Federal government fully considers the consequences of its proposed actions -- in this case, providing public land and taxpayer-backed financing to several energy companies so they can build on over 40 square miles of mostly pristine desert habitat and cultural landmarks.

The lawsuit challenges the Department of the Interior's review process for the following six solar power projects:
  • BrightSource Energy LLC's Ivanpah Solar Energy Generating System (ISEGS)
  • Tessera Solar LLC's Calico Solar power project
  • Teserra Solar LLC's Imperial Valley Solar power project
  • Solar Millennium's Blythe Solar power project
  • NextEra Energy Resources LLC's Genesis Solar power project
  • Chevron's Lucerne Valley solar project

The challenge alleges violations of the following statutes:
  • Native American Grave Protection and Repatriation Act (NAGPRA)
  • National Historic Preservation Act (NHPA)
  • National Environmental Policy Act (NEPA)
  • Federal Land Policy and Management Act (FLPMA)
  • Administrative Procedures Act (APA)
Assuming the Department of the Interior handled the review process for all of the six projects just as they handled the Imperial Valley Solar project (also among the 6), the plaintiffs stand a decent chance of winning an injunction that could at least temporarily halt efforts to bulldoze the sites.  A Federal judge appointed by President George W. Bush in 2003 ruled earlier this month that the Department of the Interior did not adequately follow the law under NHPA when it authorized the Imperial Valley solar project.   Under NHPA, the government was obligated to carry out thorough "government-to-government" consultations with Native American tribes when deciding whether or not to allow construction on the Imperial site, which contained over 400 cultural artifacts that would have been destroyed, including burial grounds.

Impacts on sites of cultural heritage were apparently ignored in the review of the other 5 projects, as well. Among the concerns, the lawsuit highlights the Department's approval of the Ivanpah solar power project in the northeastern Mojave Desert:
"...approval of the Ivanpah Project will result in the intentional excavation, disposal, or other removal of Native American cultural items (including human remains) known to be or strongly suspected of being on the site of the Project without compliance with the conditions necessary for excavation, disposal, or other removal."
The Department of the Interior likely placed immense pressure on local field offices to conduct the review expeditiously, since President Obama touted solar energy and American Reinvestment and Recovery Act grants and loans for the projects as part of his energy agenda.  Although renewable energy is necessary in order to reduce greenhouse gas emissions, the Department of the Interior's interest in quickly generating renewable energy success stories unfortunately dovetailed with poor siting decisions by energy companies over the past two years.  Rather than the careful placement of renewable energy on already-disturbed land or in population centers, energy companies rushed to submit applications for public land totaling well over 500 square miles in California alone, without concern for the ecological or cultural value of the proposed sites.

Desert botanist James Andre, Ph.D summarized the rushed nature of the Department's approval process: "Rather than be smart from the start by utilizing ecologically degraded sites first, a reckless and scientifically unmerited decision has been made to instead race into our most pristine desert and obliterate some of the most botanically significant lands in California."

A noted energy engineer, Mr. Bill Powers, criticized the approval process from an economic efficiency standpoint: "So the Orwellian aspect of the government involvement in this process is that now instead of the analysis being focused on is this a cost effective project, is it a project that will minimize or eliminate environmental damage, is it a good investment strategically for this state, all of that is secondary for the race to get the permit so that the project can get a 30 percent cash grant. In this case -- that's $600 million up front per project. So the money is so big that it's now like a bull rush to the finish line."  Many analysts following renewable energy believe that utility-scale solar energy projects could not operate without government subsidies, and would produce power that costs far more to produce and transmit to the cities from the middle of the deserts.

The underlying concern of the lawsuit, however, is what could be lost if the projects move forward, and whether or not the government is even aware of the cumulative impacts of its overall policy to expedite approval of renewable energy on public land.  The Department of the Interior took policy steps over the past two years that purposefully expedited the review process for solar power projects in California's deserts, including a memorandum of understanding between Washington and Sacramento that ordered a quicker process and encouraged solar energy projects in "solar energy zones" that were still being studied under a broader review of energy policy.  The Department's agreement with California ordered:
Place a high priority on processing applications for solar development in any areas ultimately identified as solar energy zones through the Solar Energy Programmatic Environmental Impact Statement (Solar PEIS) and renewable energy zones identified in the DRECP and in the Renewable Energy Transmission Initiative (RETI).”
Through the memorandum of understanding and "fast track" list, the Department of the Interior created a new policy to meet Federal objectives that had not been completely reviewed under the Solar Energy Programmatic EIS, for which a draft was only recently releasedThe "fast track" list and agreement with California set the stage for landscape-scale environmental and cultural damage that was not fully addressed before implementing the new policies.  Failure of the Department to complete a programmatic EIS aside, the Department's policies showed deference to energy companies in the individual reviews of each of the solar projects, and the historical and environmental review process simply became an arbitrary box to be checked before the government approved the handover of public land.

The review process should have been conducted with the intent of fully understanding the overall impacts of the projects and the Department's policies, including what cultural sites would be lost or damaged, and how the Mojave and Sonoran desert ecosystems would be altered when fragmented by multiple large industrial sites.

Federal and State agency leadership only took steps to curb the demands of energy companies in certain instances when US Fish and Wildlife and California Energy Commission (CEC) analysts rang the alarm regarding the extent of environmental damage some projects would cause.  For instance, the CEC staff strongly recommended against the Ridgecrest Solar Power project because of the likelihood it could drive an important desert-dwelling squirrel closer to extinction.  US Fish and Wildlife and California Department of Fish and Game analysts expressed concern with the high number of endangered desert tortoises that would be killed or displaced by the Calico Solar power project, resulting in the CEC sending the company back to the drawing board to find a layout that reduced impacts on the tortoise.  But the Calico Solar power project was approved despite continued concerns about impacts on the desert tortoise and special status plant species, hence it remaining on the list of 6 projects identified in the legal challenge.

Ultimately, the legal challenge should be a wake-up call to the Department of the Interior leadership and energy companies, and encourage a responsible renewable energy strategy that avoids sites of cultural and environmental significance.  The result would be cheaper and cleaner energy, and the preservation of our natural and cultural heritage for future generations of Americans to enjoy.

A photo of the Ivanpah Solar Energy Generating System site before construction.  The lawsuit asserts that the Department of the Interior's review of BrightSource Energy's application for the site ignored concerns about the presence of Native American remains there.

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