NEPA Nightmares II: The North Sky River Wind Energy Project

The National Environmental Protection Act (NEPA) is a major source of permitting delay for important clean energy infrastructure. NEPA lawsuits, filed disproportionately by large environmental NGOs, pose a real, sizable, and concerning risk to clean energy development and the future of American decarbonization. The most contentious NEPA challenges filed between 2013 and 2022, on average, delayed clean energy projects by just under 4 years. The majority of those lawsuits were filed by a small set of national NGOs who lost upwards of 70% of their cases.

In most cases, NEPA litigation functions to delay and add costs to infrastructure development, not to improve environmental outcomes. In the case of North Sky River Wind Energy Project, activist opposition to the project was purely obstructionist, aiming not to modify the project but to impose more paperwork and hurdles for the development.

Perpetual litigation delays projects, driving up costs that are ultimately passed on to consumers through higher utility bills. Developers are often reluctant to disclose these costs, making it hard to precisely quantify the full impact.

This is the second installment of our ongoing series exposing the toll that the NEPA litigation doom loop takes on development of clean energy infrastructure in the United States. Stay tuned for future installments.

Case Study 2: North Sky River Wind Energy Project

Kern County has long been the backbone of California’s energy sector, historically producing most of the state’s oil and gas. With one in seven jobs in the county tied to oil, the industry has been the bedrock of the local economy. While the industry has bolstered a proud middle class, it has also made the county vulnerable to fluctuations in the price of crude oil and left residents to grapple with some of the highest rates of air pollution in the country. In recent years, Kern has made bold strides toward diversifying its economy by becoming California’s leading producer of wind and solar energy. Although solar projects have waned in popularity due to minimal tax benefit, wind energy now generates more tax revenue for Kern County than both oil and gas.

Yet, this shift hasn’t been without challenges. While county officials recognize the economic benefit of renewables, some in the community have been harder to convince. Developers of the North Sky River Wind Project faced this challenge head-on. Despite earnest public engagement, NEPA afforded a small group of disgruntled activists power to delay the project. While their efforts were ultimately unsuccessful, this case study illustrates precisely how NEPA enables obstruction.

The fight for North Sky began in 2010. Situated next to an existing wind farm in the Sierra Nevada range, the project was designed to generate enough energy to power over 40,000 homes. In light of past opposition to wind projects on public land in the area, developers signed deals with 29 independent landowners to build the turbines exclusively on private land. Not only did this ensure community buy-in, it lessened the permitting burden. Most of the project was exempted from federal permitting processes, save for a 10-mile stretch of public land requiring approval from the Bureau of Land Management (BLM).

Developers simultaneously initiated the state and federal permitting processes. Kern County led the state-level review and spent almost 6 months producing a 5 volume environmental assessment. The county fielded 61 public comment letters in response and spent 2 months gathering information to address each. Some community objections, like the claim that turbines would cause epileptic seizures, were absurd and quickly debunked by experts. More serious concerns focused on the project's impact on local bird populations. The county’s thorough, 117 page avian assessment found that “the studies to date do not suggest that a wind development at the NSR Project would have significant impacts to most avian species.” With a few mitigation measures and a promise from developers to continue studying the issue, the County Board of Supervisors approved the project.

Simultaneously, the BLM conducted a NEPA analysis for the 10 mile stretch of public land needed to connect the wind farm to existing grid infrastructure. Since the project required only 962 feet of new road development, the BLM determined the environmental impact would be minimal and swiftly granted the permit.

Shortly thereafter, the Sierra Club, Center for Biological Diversity, and Defenders of Wildlife sued the BLM to stop the project, claiming it would kill too many birds. Significantly, they did not seek to alter the project itself but instead demanded more paperwork. They argued that the BLM’s NEPA analysis should cover the entire 13,000 acre project—an analysis that would have taken years. This was a clear attempt to delay construction long enough to financially cripple the project.

The District Court for the Eastern District of California rejected their argument, noting that the plaintiffs were likely vying for more paperwork to simply pave the way for another lawsuit, writing:

Plaintiffs' contention that BLM unlawfully failed to conduct a full EIS and instead issued a FONSI appears to center more on the formalities of procedure rather than on environmental benefits potentially lost. While it is no doubt true that Plaintiffs disagree with the outcome of the state process, the court has no facts before it to conclude that requiring BLM to produce an EIS that takes into account the environmental impacts of the Wind Project would produce anything more than an opportunity for Plaintiffs to advance the same arguments on the same facts that were advanced in the state CEQA process.

The North Sky River Wind Project became fully operational in December 2012, as scheduled, but the legal battle stretched into 2015, albeit unsuccessfully for the plaintiffs.

The North Sky River Wind legal battle demonstrates how NEPA lawsuits can be a tool used by activists to delay projects, not to legitimately improve environmental outcomes. These delays aim to drive up the costs of infrastructure projects until they become too high a burden for developers. While NEPA does not offer citizens and activists an outright veto, by allowing groups to hijack development projects, the law sanctions well-funded organizations to try to limit crucial clean energy, transmission, and other infrastructural projects.

Stay tuned for future installments of NEPA Nightmares.

• 12/16/2010: Initiation of the Permitting Process

• 5/6/2011: Kern County releases Draft Environmental Impact Report

• July 27, 2011: Kern County publishes Final EIR with response to public comments

• 8/11/2011: Kern County Board of Supervisors approves FEIR, authorizing the project to move forward

• 2/1/2012: California Public Utilities Commission approves 25-year power purchase agreement

• 3/15/2012: California Endangered Species Act Incidental Take Permit Approved

• 4/13/2012: Sierra Club, Center for Biological Diversity, and Defenders of Wildlife file complaint in the District Court for the Eastern District of California

• December 2012: The North Sky River Wind Energy Project becomes fully operational

• 1/11/2013: District Court for the Eastern District of California rules in favor of BLM

• 3/15/2013: Sierra Club, Center for Biological Diversity, and Defenders of Wildlife appeal their case to the 9th Circuit Court of Appeals

• 5/27/2015: 9th Circuit Court of Appeals affirms ruling by District Court in favor of BLM