Backcountry Against Dumps v. Chu

• Decision Date: 29 September 2015
• Docket Number: Case No.: 12cv3062 L (JLB)
• Citation: 215 F.Supp.3d 966
• Parties: BACKCOUNTRY AGAINST DUMPS; et al., Plaintiffs, v. Dr. Steven CHU, in his official capacity as Secretary of the United States Department of Energy; et al., Defendants.
• Court: U.S. District Court — Southern District of California

215 F.Supp.3d 966

BACKCOUNTRY AGAINST DUMPS; et al., Plaintiffs,

v.Dr. Steven CHU, in his official capacity as Secretary of the United States Department of Energy; et al., Defendants.

Case No.: 12cv3062 L (JLB)

United States District Court, S.D. California.

Signed September 29, 2015

Stephan C. Volker, Law Offices of Stephan C. Volker, Oakland, CA, for Plaintiffs.

U.S. Attorney CV, U.S. Attorneys Office Southern District of California, San Diego, CA, Paul David Barker, Jr., United States Department of Justice, Washington, DC, Rickey Doyle Turner, Jr., US Department of Justice, Denver, CO, for Defendants.

ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

ECF Nos. 74, 75, 77

Hon. M. James Lorenz, United States District Judge

I. BACKGROUND

On August 17, 2012, the Department of Energy ("DOE") announced its decision to issue a Presidential permit to Energia Sierra Juarez U.S. Transmission, LLC ("ESJ"), a subsidiary of Sempra Energy. The permit, PP–334, allowed ESJ "to construct, operate, maintain, and connect a double-circuit 230,000–volt (230–kV) electric transmission line across the U.S.–Mexico border in eastern San Diego Country, California." 77 Fed. Reg. 49789–01.

The envisioned transmission line ("Project") would run approximately 1.65 miles from the vicinity of La Rumorosa, Northern Baja California, Mexico to a spot near Jacumba, California. Roughly .65 miles of the transmission line would be within the U.S. The terminus in Mexico was ESJ's planned wind turbine facility, capable of generating 1,250 Megawatts (MW) of electricity ("ESJ Wind Project"). The end point in Jacumba was San Diego Gas & Electric's planned ECO Substation, which would then be connected with the 500–kV Southwest Powerlink transmission line. The intended result of the Project was to allow electricity generated by the ESJ Wind Project to be delivered into the U.S. power grid.¹

DOE–issued Presidential permits are required before electricity transmission facilities may be constructed, operated, maintained, or connected at the U.S. Border. E.O. 10485 (September 9, 1953), as amended by E.O. 12038 (February 7, 1978). The DOE is responsible for receiving and reviewing applications and issuing permits. PP–334 was issued to ESJ following a review process that included an examination of the impacts of the Project as directed by the National Environmental Policy Act ("NEPA").

On December 26, 2012, Plaintiffs Protect Our Communities Foundation ("POC"), Backcountry Against Dumps ("Backcountry"), and Donna Tisdale (collectively "Plaintiffs"), filed suit for declaratory and injunctive relief. (ECF No. 1.) Plaintiff claims violations of NEPA, as well as the Endangered Species Act ("ESA"), the Migratory Bird Treaty Act ("MBTA"), the Bald and Golden Eagle Protection Act ("BGEPA"), and the Administrative Procedure Act ("APA").

Plaintiffs named Defendants Dr. Steven Chu and Jerry Pell in their official capacities as Secretary and Project Manager for the Department of Energy, respectively, as well as the Department of Energy ("DOE") itself. Plaintiffs also named Ken Salazar, as Secretary of the Interior; Karen Goebel, as Assistant Field Supervisor for Fish and Wildlife Service; and the Fish and Wildlife Service ("FWS"). All of these Defendants (collectively "Federal Defendants") have subsequently filed as one unit.

On April 1, 2013, Energia Sierra Juarez U.S. Transmission, LLC, ("ESJ") filed, along with the original parties to the action, a joint motion for ESJ to intervene in the action. (ECF No. 8.) The Court granted the joint motion three days later. (ECF No. 9.) On April 11, 2013, Federal Defendants filed a motion to dismiss for lack of jurisdiction and failure to state a claim, which ESJ later joined. (ECF Nos. 10, 11.) The Court granted the motion in part and denied in part. (ECF No. 39.) Plaintiff filed an amended complaint on April 21, 2014. (ECF No. 45.) Both the Federal Defendants and ESJ filed answers on May 21, 2014. (ECF Nos. 46, 47.)

On September 18, 2014, Plaintiff POC moved to be dismissed from the suit and the Court granted the motion. (ECF Nos. 63, 66.) Two months later, the remaining Plaintiffs filed a motion for summary judgment. (ECF No. 74.) Both Federal Defendants and ESJ filed separate cross-motions for summary judgment, which also served as their respective oppositions. (ECF Nos. 75–78.) Plaintiffs countered by filing combined oppositions to Defendants' cross-motions and replies to Defendants' oppositions within the same documents. (ECF Nos. 81, 82.) Finally, Federal Defendants and ESJ each filed a reply to Plaintiffs' oppositions. (ECF Nos. 83–84.)

With all three motions for summary judgment fully briefed, the parties moved jointly for a stipulation that no statement of undisputed fact is necessary, which the Court granted. (ECF Nos. 85–86.) For the purpose of this order, the arguments presented in all three motions for summary judge, the responses, and replies have been considered and are ruled on herein.

II. LEGAL STANDARD

Challenges under the National Environmental Policy Act, the Endangered Species Act, the Migratory Bird Treaty Act, and the Bald and Golden Eagle Protection Act are governed by the Administrative Procedures Act. San Luis & Delta–Mendota Water Auth. v. Jewell , 747 F.3d 581, 601 (9th Cir. 2014) ; City of Sausalito v. O'Neill , 386 F.3d 1186, 1205–06 (9th Cir. 2004) ; 5 U.S.C. § 702.

Under the APA, a court should only overturn an agency action when it finds the action 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). This standard of review is highly deferential to the agency and the reviewing court "is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)overruled in part on other grounds by Califano v. Sanders , 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) ; Independent Acceptance Co. v. California , 204 F.3d 1247, 1251 (9th Cir. 2000). Courts should be at their most deferential when reviewing scientific or technical judgments within the agency's field of expertise.

Conservation Congress v. Finley , 774 F.3d 611, 617 (9th Cir. 2014). However, courts "must not ‘rubber stamp’ ... [agency actions which are] inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." Ocean Advocates v. U.S. Army Corps of Engineers , 402 F.3d 846, 859 (9th Cir. 2004) (internal quotation and citation omitted).

Review of an agency decision is generally limited to the administrative record used by the agency in making the challenged decision. Fence Creek Cattle Co. v. U.S. Forest Service , 602 F.3d 1125, 1131 (9th Cir. 2010). Summary judgment is an appropriate "when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Conservation Congress , 774 F.3d at 617 (citing Karuk Tribe of Cal. v. U.S. Forest Serv. , 681 F.3d 1006, 1017 (9th Cir. 2012) ) (en banc ).

III. DISCUSSION

A. Plaintiffs' Standing to Bring Claims

A plaintiff must demonstrate adequate standing in order to bring a challenge to the action or inaction of a government body. Kokkonen v. Guardian Life Ins. Co. of America , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Standing is established for an individual plaintiff when they can show (1) concrete, particularized, and imminent injury in fact; (2) the injury is fairly traceable to the actions of the defendant; and (3) it is likely that a favorable judicial decision will redress the injury. Summers v. Earth Island Institute , 555 U.S. 488, 492, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). The injury-in-fact element can be satisfied by an injury to aesthetic or environmental interests but "requires more than an injury to a cognizable interest. It requires that the party seeking review be [themselves] among the injured." Sierra Club v. Morton , 405 U.S. 727, 734–35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The causation and redressability elements are closely linked. In order for a court to remedy a plaintiff's injury, the plaintiff must make clear to the court that the action or inaction at issue caused the injury. Without proof of causation, there can be no effective redress. Further, "once a plaintiff has established an injury in fact under NEPA, the causation and redressability requirements are relaxed" Cantrell v. City of Long Beach , 241 F.3d 674, 682 (9th Cir. 2001) ; see Lujan v. Defenders of Wildlife , 504 U.S. 555, 572, n. 7, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In Cantrell , the Ninth Circuit held that redressability (and, by extension, causation) does not require a demonstration that judicial intervention would change the ultimate outcome of the government action; only that judicial intervention will help the plaintiff enforce their procedural rights. Cantrell , 241 F.3d at 682.

An organization can gain associational standing for a challenge when (1) the organization's members would have standing on their own, (2) the interests at stake relevant to the organization's purpose, and (3) neither the claim nor relief requires specific individual members of the organization to participate. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ; Hunt v. Washington State Apple Advertising Com'n , 432 U.S. 333, 342–43, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). The first element of associational standing is self-explanatory: individual members of the organization must be capable of demonstrating standing for themselves. The second element is "undemanding" and requires "mere pertinence between litigation subject and organizational purpose." Presidio Golf Club v. National Park Service , 155 F.3d 1153, 1158 (9th Cir. 1998) (quoting Humane Soc'y of the United States v. Hodel , 840 F.2d 45, 58 (D.C. Cir. 1998) ). Finally, the...