Hamrick v. Gen. Servs. Admin., Case No. 15–1023

CourtUnited States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
Writing for the CourtMichael M. Mihm, United States District Judge
Citation107 F.Supp.3d 910
Decision Date22 May 2015
Docket NumberCase No. 15–1023
Parties Steven L. Hamrick, et al., Plaintiffs, v. General Services Administration, et al., Defendant.

107 F.Supp.3d 910

Steven L. Hamrick, et al., Plaintiffs,
v.
General Services Administration, et al., Defendant.

Case No. 15–1023

United States District Court, C.D. Illinois, Peoria Division .

Signed May 22, 2015


107 F.Supp.3d 911

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,

107 F.Supp.3d 912

James Roland Griffin, Schain Banks, Chicago, IL, John Matthew Berner, Droel PLLC, Bloomington, MN, for Defendant.

ORDER

Michael M. Mihm, United States District Judge

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.

OVERVIEW OF PLAINTIFFS' COMPLAINT

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).

ADMINISTRATIVE RECORD

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

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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:

• AR 0001 through AR 1729 filed on disc with the Clerk of the Court on March 3, 2015;

• AR 1730 through AR 1771 filed on disc with the Clerk of the Court on March 13, 2015;

• AR 1772 (ECF No. 43–2)—Email dated April 17, 2014, from Mark Romero to Michael Gelber, with the Subject: Renewable Energy Contract;

• AR 1773 (ECF No. 43–1)—Draft of the Applicability of An Automatic Categorical Exclusion from the National Environmental Policy Act;

• AR 1774 through AR 1775 (ECF No. 54–1)—emails between GSA and its Attorney dated September 24, 2013;

• Utility Areawide Guide (ECF No. 45–1);

• Utility (FERC and ICC) on-line searches (ECF No. 45–2); and

• Public Building Service National Environmental Policy Desk Guide (1999) (ECF No. 62).

FINDINGS OF FACT FROM THE ADMINISTRATIVE RECORD

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:

Section 1. Renewable Energy Target. (a) By fiscal year 2020, to the extent economically feasible and technically practicable, 20 percent of the total amount of electric energy consumed by each agency during any fiscal year shall be renewable energy.

(b) Agencies shall seek to achieve the renewable energy consumption target set forth in subsection (a) of this section by, where possible, taking the following actions, which are listed in order of priority:

(i) installing agency-funded renewable energy on-site at Federal facilities and retain renewable energy certificates;
107 F.Supp.3d 914
(ii) contracting for energy that includes the installation of a renewable energy project on-site at a Federal facility or off-site from a Federal facility and the retention of renewable energy certificates for the term of the contracts;

(iii) purchasing electricity and corresponding renewable energy certificates; and

(iv) purchasing renewable energy certificates.

(c) Agencies shall ensure that 100 percent of renewable energy certificates identified in subsection (b)(iii) and (b)(iv) of this section are produced by new renewable sources as defined in section 5(c) of this memorandum.

* * *

Sec. 5. Definitions. As used in this memorandum:

* * *

(b) "New renewable sources" means sources of renewable energy placed into service within 10 years prior to the start of the fiscal year.

(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)...

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1 practice notes
  • Hicks v. Clark, Case No. 13 C 989
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 4 d4 Junho d4 2015
    ...state court acting sua sponte? Of course not. It was the duty of Department and its cohorts to present the facts that would have spared 107 F.Supp.3d 910Hicks renewed torture at Jemmison's hands. It simply will not do for those defendants' counsel to try to shift responsibility in that fash......
1 cases
  • Hicks v. Clark, Case No. 13 C 989
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 4 d4 Junho d4 2015
    ...state court acting sua sponte? Of course not. It was the duty of Department and its cohorts to present the facts that would have spared 107 F.Supp.3d 910Hicks renewed torture at Jemmison's hands. It simply will not do for those defendants' counsel to try to shift responsibility in that fash......

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