Hamrick v. Gen. Servs. Admin.
| Decision Date | 22 May 2015 |
| Docket Number | Case No. 15–1023 |
| Parties | Steven L. Hamrick, et al., Plaintiffs, v. General Services Administration, et al., Defendant. |
| Court | U.S. District Court — Central District of Illinois |
Richard S. Porter, Michael F. Iasparro, Hinshaw & Culbertson, Rockford, IL, for Plaintiffs.
Gerard A. Brost, US Atty., Peoria, IL, Peter Kryn Dykema, United States Department of Justice, Washington, DC, James Roland Griffin, Schain Banks, Chicago, IL, John Matthew Berner, Droel PLLC, Bloomington, MN, for Defendant.
On May 7, 2015, this matter came before the Court for a hearing on Defendants Geronimo Wind Energy ("GWE"), LLC, MG2 Tribal Energy, LLC ("MG2" or "MG2 Tribal Energy"), and Walnut Ridge Wind, LLC's ("WRW") (GWE, MG2 and WRW collectively referred to as "Corporate Defendants") Motion to Dismiss (ECF No. 14) and Defendant General Services Administration's ("GSA") Motion to Dismiss (ECF No. 23). During the hearing, the Court stated that it would enter a written order denying the Motions to Dismiss (ECF Nos. 14 and 23). The Court further stated that, based on the Administrative Record (see infra, p. 912), the Court's order would memorialize its finding that GSA's determination that the proposed purchase of wind-produced electric energy and accompanying renewable energy certificates from MG2 Tribal Energy qualified as an automatic categorical exclusion pursuant to Section 5.3(r) of the Public Building Service National Environmental Policy Desk Guide was arbitrary, capricious or otherwise not in accordance with the law. This is that Order.
On January 16, 2015, Plaintiffs filed their Complaint for Declaratory and Injunctive Relief (ECF No. 1) against the Defendants. Plaintiffs are property owners (or renters) in Bureau County, Illinois, near the proposed wind farm. (ECF No. 1 at 4–10). The proposed wind farm is slated to include 123 industrial wind turbine generators and related facilities on agricultural land encompassing approximately 14,500 acres in Bureau County, Illinois. (ECF No. 1 at 12). The Complaint alleges that WRW is a Delaware Limited Liability Company formed for the purpose of developing and constructing a utility-grade wind farm in Bureau County, Illinois. Id . GWE acquired WRW in 2013. Id . GWE formed MG2 with the Mesa Grande Band of Mission Indians in order to develop the wind power facility in Bureau County while taking advantage of a preference included in 25 U.S.C. § 3502(d). (ECF No. 1 at 11). In September 2014, GSA entered into a ten-year Power Purchase Agreement with MG2 to purchase electricity generated by the wind power facility. (ECF No. 1 at 18). Plaintiffs allege that the Defendants, specifically, GSA, violated the National Environmental Policy Act, ("NEPA"), 42 U.S.C. § 1600–1687 by failing to undertake an environmental analysis or an environmental impact statement prior to entering into a 10–year Power Purchase Agreement with MG2. (ECF No. 1 at 18).
The Complaint specifically seeks a finding from this Court that GSA violated NEPA, and direct GSA to complete an Environment Impact Statement related to the wind power facility. (ECF No. 1 at 20–21). Plaintiffs further request that the Court order GSA and MG2 to cease and desist from reliance upon the Power Purchase Agreement and enjoin GWE and WRW from proceeding with any further development, construction or operation of the wind power facility. (ECF No. 1 at 21).
This case has been brought by the Plaintiffs under the Administrative Procedure Act, 5 U.S.C. § 500 et. seq . Under the Act, this Court's review is generally "confined to the administrative record to determine whether, based on the information presented to the ... agency, [its] decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Little Company of Mary Hospital v. Sebelius, 587 F.3d 849, 856 (7th Cir.2009). On March 3, 2015, GSA filed the Administrative Record, and subsequently, on March 13, 2015, filed a supplement to the administrative record. (See ECF Nos. 34 and 36). Plaintiffs objected to the completeness of the record. (ECF No. 38). GSA filed its response to the Plaintiffs' objection, but also further supplemented the Administrative Record. (ECF No. 39 and 43). On April 28, 2015, this Court entered an Order establishing the documents that are appropriately included in the Administrative Record for review in this case. (See ECF No. 52). During the hearing held on May 7, 2015, the Court indicated that it seemed appropriate to include the Public Building Service National Environmental Policy Desk Guide (1999) in the record. None of the parties objected to this suggestion. As a result, the Court finds the Administrative Record in this case include the following documents:
Background on renewable energy initiatives
On December 5, 2013, President Barack Obama issued a Memorandum for Heads of Executive Departments and Agencies regarding Federal Leadership on Energy Management. In that memorandum, President Obama began by explaining that "[i]n order to create a clean energy economy that will increase our Nation's prosperity, promote energy security, combat climate change, protect the interests of taxpayers, and safeguard the health of our environment, the Federal Government must lead by example." (AR 1736). With respect to renewable energy, President Obama outlined the following goal in his memorandum:
(AR 1737–39).
History of activities and negotiations resulting in the contract for renewable energy
On or around August 13, 2013, individuals from GSA had a meeting with individuals representing at least some of the Corporate Defendants (or their interest1 ). (AR 1; AR 142). During that meeting, the Corporate Defendants presented a proposal on meeting the renewable energy goals of GSA. (AR 3). The proposal specifically stated that a power purchase agreement was needed in order to justify making an investment in the project. (AR 8, the proposal states "Need power purchase agreement for project to justify making investment to qualify for [Production Tax Credit]"). The proposal also noted that there was a need to move quickly in order to take advantage of the Production Tax Credit and that MGG Energy qualified for federal preference in energy sales under the Indian Energy Act of 2005. (AR 12).
Discussions continued via email communications between representatives of GSA and the Corporate Defendants after the initial meeting. (See e.g . AR 1 et seq. ). These discussions included an examination of a potential preference for tribal entities (see e.g . AR 150) and the energy being delivered into the PJM Interconnection (see e.g. AR 138). Notably, 25 U.S.C. § 3502(d) provides that "[i]n purchasing electricity or any other energy product or byproduct, a Federal agency or department may give preference to an energy and resource production enterprise, partnership, consortium, corporation, or other type of business organization the majority of the interest in which is owned and controlled by 1 or more Indian tribes." (See also AR 1728).
As way of additional background, PJM Interconnection is a regional transmission organization ("RTO") approved by the Federal Energy Regulatory Commission that is generally tasked with the responsibility for calculating available transfer capability across the geographical area included in the RTO, as well as the planning and expansion of the transmission grid, at least for facilities necessary for maintaining system reliability. GSA indicated that it sought renewable energy and renewable energy certificates from this geographical area.
Perhaps influenced by the discussions, GSA ultimately issued a solicitation that included many specifications that had been discussed between the parties. The solicitation dated August 28,...
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...of “54 percent Scope 1 and 2 GHG reduction in 2025 using alternate strategies.” Id . at 15 n.6. 168. Hamrick v. General Servs. Admin., 107 F. Supp. 3d 910 (C.D. Ill. 2015) (holding GSA is not entitled to automatic categorical exclusion under National Environmental Policy Act in its purchase......