Tortoise Protectors Can’t Reach Finish Line

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By Patrick L. Gregory

An environmentalist group’s suit to stop a solar project out of concern for desert tortoises came to an end, after a ruling by the U.S. Court of Appeals for the Ninth Circuit May 18 ( Defenders of Wildlife v. Zinke , 2017 BL 166460, 9th Cir., No. 15-55806, 5/18/17 ).

Defenders of Wildlife alleged that federal agencies violated the Endangered Species Act by issuing an arbitrary and capricious “biological opinion” concerning the potential effects of a solar project on desert tortoises.

The opinion—which found that NextLight Renewable Power LLC’s solar project in Nevada wouldn’t likely jeopardize the species—was neither arbitrary nor capricious, the decision by Judge Milan D. Smith Jr. said.

The act allows agency decisions “in the face of uncertainty,” and there was no scientific consensus about how wide the tortoise’s habitat needed to be to protect the species, the court said.

Judge John B. Owens and District Judge Edward R. Korman, sitting by designation from the U.S. District Court for the Eastern District of New York, joined the decision.

Meyer Glitzenstein & Eubanks argued for Defenders of Wildlife.

The Department of Justice argued for the federal government.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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