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Appeal of the United States Forest Service's Approval of Iberdrola's

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Appeal of the United States Forest Service's Approval of Iberdrola's UNITED STATES OF AMERICA DEPARTMENT OF AGRICULTURE UNITED STATES FOREST SERVICE Before the Regional Forester Eastern Region In re Appeal of the Record of Decision, ) And Final Environmental Impact Statement for the ) Deerfield Wind Project ) USDA Forest Service ) Manchester Ranger District ) Green Mountain National Forest ) Searsburg and Readsboro, ) Bennington County ) Vermont ) ) Appeal No. ________ ) VERMONTERS FOR A CLEAN ) ENVIRONMENT, INC. ) ) ) Appellant ) ) ) NOTICE OF APPEAL AND STATEMENT OF REASONS OF VERMONTERS FOR A CLEAN ENVIRONMENT, INC. Appeal Submitted To: Appeal Deciding Officer, Chuck Meyers USDA Forest Service, Eastern Region 626 E. Wisconsin Avenue Milwaukee, WI 53202 [email protected] Forest Supervisor, Colleen Pelles Madrid Green Mountain and Finger Lakes National Forests 231 North Main Street, Rutland, VT 05701 Fax: 802-747-6766 February 24, 2012 Deerfield Wind Appeal – Vermonters for a Clean Environment, Inc. Appeal Prepared By: Robert E. Woolmington, Esq. & Patrick J. Bernal, Esq. Witten, Woolmington & Campbell, P.C. 4900 Main Street P.O. Box 2748 Manchester Center, VT 05255 -&- Stephen L. Saltonstall, Esq. 5188 Main Street P.O. Box 1992 Manchester Center, VT 05255 (802) 362-7077 APPELLANT’S CONTACT INFORMATION Annette Smith Vermonters for a Clean Environment, Inc. 789 Baker Brook Road Danby, VT 05739 (802) 446-2094 [email protected] NOTICE OF APPEAL Pursuant to 36 C.F.R. Part 215, Vermonters for a Clean Environment, Inc. (Appellant or VCE) hereby appeals the Record of Decision (ROD) and the Final Environmental Impact Statement (FEIS) for the Deerfield Wind Project in the Manchester Ranger District of the Green Mountain National Forest (GMNF), USDA Forest Service, in Searsburg and Readsboro, Bennington County, Vermont. The Responsible Official is Colleen Pelles Madrid, Forest Supervisor for the Green Mountain and Finger Lakes National Forests who signed the decision 2 Deerfield Wind Appeal – Vermonters for a Clean Environment, Inc. on January 3, 2012. The legal notice was published in the newspaper of record, the Rutland Herald on January 10, 2012, therefore, this appeal is timely under 36 C.F.R. § 215.15. The ROD and FEIS violate at least the following laws and guiding documents: the National Environmental Policy Act (NEPA) and the Council on Environmental Quality Regulations (CEQ Regulations), the Wilderness Act, George D. Aiken Wilderness Management Plan the National Forest Management Act (NFMA), the Clean Water Act (CWA), the Endangered Species Act (ESA), Executive Order 11990; and Forest Service policy as set forth in the agency’s Handbook, Manual, as well as other guidance. Appellant specifically reserves the right to allege that the ROD and FEIS violate additional laws. VCE is a Vermont, nonprofit membership organization dedicated to assuring appropriate use of Vermont’s resources, including Vermont’s air, land and water. Appellant and its members are very familiar with the Deerfield Wind Project area and with the Green Mountain National Forest. Appellant’s members use and appreciate these lands for their scenic beauty and solitude, and for hiking, camping, hunting, fishing, mountain biking, watching birds and viewing wildflowers and other flora and fauna, photography, spiritual renewal, and other outdoor recreational and educational activities. The Deerfield Wind Project appealed here would directly and significantly affect Appellant and its members because it would degrade all of these values and uses. Appellant specifically participated in the public process surrounding the Deerfield Wind Project, including submitting comments and attending public meetings for the initial scoping, draft environmental impact statement (DEIS), and supplemental DEIS (SDEIS) for the Project. Appellant requests that all communications regarding this appeal be directed to Annette Smith and Patrick J. Bernal, Esq. (contact information above). 3 Deerfield Wind Appeal – Vermonters for a Clean Environment, Inc. TABLE OF CONTENTS NOTICE OF APPEAL ....................................................................................................... 1 TABLE OF AUTHORITIES .............................................................................................. 6 STATEMENT OF REASONS ............................................................................................. 9 I. Range of Alternatives .......................................................................... 10 A. The Forest Service failed to consider a reasonably wide range of alternatives ..................................................................................... 10 B. The Forest Service’s Purpose and Need of evaluating the site- specific proposal put forward by the developer, and excluding all other potential sites and alternatives, fails under NEPA .............. 11 1. The Forest Service’s decision to consider only action alternatives on the same parcel of land violated NEPA ..... 13 2. The Forest Service also violated NEPA by failing to consider alternatives that included developing non-GMNF lands ..................................................................................... 14 C. The Forest Service’s decision to eliminate Site No. 35 from consideration was arbitrary and capricious .................................... 15 D. The Forest Service’s failure to justify its non-selection of Alternative No. 3 (east-side-only alternative) was arbitrary and capricious ....................................................................................... 17 E. Bat fatalities due to white-nose syndrome are now known to be significantly higher than was known by the Forest Service at the time the FEIS was prepared and the Forest Service should prepare a revised analysis to account for this information ......................... 18 II. Adverse environmental impacts from blasting are reasonably foreseeable, but the Forest Service failed to undertake the site-specific 4 Deerfield Wind Appeal – Vermonters for a Clean Environment, Inc. analysis necessary to take a “hard look” at those impacts ................. 21 III. Aiken Wilderness Area ....................................................................... 26 A. The construction of the Deerfield Wind Project will destroy the wilderness character of the George D. Aiken Wilderness Area, in plain violation of the Wilderness Act ............................................ 26 1. The visual impact of the Deerfield Wing Project on Aiken will destroy its wilderness character .................................... 29 2. The noise from the massive wind turbines at Deerfield will destroy the wilderness character of Aiken ........................... 35 B. The Forest Service violated NEPA by failing to adequately study the impacts that the Deerfield Wind Project would have on Aiken ........................................................................................................ 40 C. The Forest Service has violated NEPA by turning the job of environmental analysis over to the developer, whose only goal is to build and profit from this mammoth industrial construct on public land ................................................................................................. 41 1. The Forest Service compromised the objectivity and integrity of the NEPA process by selecting an individual to draft its EIS who was concurrently working for the project developer ............................................................................. 42 2. The Forest Service has failed to present any valid defense for its decision to select clearly biased individuals to assist it in the EIS process ............................................................... 44 REQUEST FOR RELIEF ................................................................................................. 45 5 Deerfield Wind Appeal – Vermonters for a Clean Environment, Inc. TABLE OF AUTHORITIES CASES Anglers of the Au Sable v. U.S. Forest Serv., 565 F.Supp. 2d 812 (E.D. Mich. 2008)………….13 Assoc. v. McAllister, 666 F.3d 549 (9th Cir. 2011)……………………………………………...36 Associations Working for Aurora's Residential Env't v. Colorado Dept. of Transp., 153 F.3d 1122 (10th Cir. 1998)……..………………………………………………………………….42, 44 Cabinet Resource Group v. U.S. Fish and Wildlife Service, 465 F.Supp.2d 1067 (D. Mont. 2006) …………………………………………………………………………………………………...25 Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C.Cir.1991)………………………12 Colorado Wild v. United States Forest Service, 523 F.Supp.2d 1213 (D. Colo. 2007)…………………………………………………………………………………………......44 Envt’l Law & Policy Ctr. v. U.S. Nuclear Regulatory Comm’n, 470 F.3d 676 (7th Cir. 2006) ……………………………………………………………………………………………..…13, 18 Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437 (4th Cir.1996)………………18 Kettle Range Conservation Group v. U.S. Forest Service, 148 F.Supp.2d 1107 (E.D. Wash 2001)………………………………………………………………………………….………….25 'Ilio'ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083 (9th Cir. 2006)…………………………..10, 14 Izaak Walton League v. Marsh, 655 F.2d 346 (D.C. Cir. 1981)…………………………..…19, 21 Izaak Walton League of America, Inc. v. Kimbell, 516 F.Supp.2d 982 (D.Minn. 2007)….....28, 40 Kleppe v. Sierra Club, 427 U.S. 390 (1976)……………………………………………………..40 Lands Council v. Powell, 395 F.3d 1019 (9th Cir.2004)………………………………………...26 Mid States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003)……………………………………………………………………………………………..23 Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693 (2d Cir. 1972)…………….10 Muckleshoot Indian Tribe
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