9th Cir. Won’t Block Nevada Geothermal Plant

An opinion issued on Monday by the Ninth Circuit Court of Appeals in a case filed by plaintiffs Fallon Paiute-Shoshone Tribe and the Center for Biological Diversity found largely in favor of the federal government defendants: the U.S. Department of the Interior, Bureau of Land Management, its the regional field manager, and intervenor-defendant Ormat Nevada Inc. (Ormat).

The plaintiffs initially challenged the construction of a geothermal power plant on federal public land just outside of Fallon, Nevada. They alleged that the power plant, which was proposed by Ormat Nevada Inc., would endanger the Dixie Valley Toad, an animal under Endangered Species Act (ESA) protection. The complaint asserted that the geothermal production would have severe effects on the habitat that the species relies on to survive.

The suit sought to halt the construction of the plant altogether and ensure that any future construction would be done in a manner that would not endanger the toad. The suit alleged violations of the National Environmental Policy Act (NEPA), the Religious Freedom Restoration Act (RFRA), and the Administrative Procedure Act (APA).

The district court imposed a preliminary injunction halting construction for 90 days, ruling that further delay would almost certainly cause Ormat not be able to complete construction by the end of 2022 and would therefore stand to lose $30 million over twenty years. Ormat appealed the decision and the plaintiffs cross-appealed.

The Ninth Circuit ruled that Ormat’s appeal was moot and dismissed it. The panel explained that since Ormat had been granted a stay of the aforementioned 90-day preliminary injunction, Ormat had been provided “all the relief it sought on appeal as construction was allowed to commence shortly thereafter.”

Regarding the plaintiffs’ cross-appeal, the Ninth Circuit affirmed the ruling of the district court, thereby declining to extend the injunction. The lower court found that the plaintiff’s NEPA, APA, and RFRA claims did not demonstrate a high likelihood of success. The opinion also agreed with the finding that “the balance of hardships tipped sharply in favor of Ormat, not Plaintiffs, after ninety days.”

Costs were awarded to Ormat on appeal.

The plaintiffs are represented in the litigation by Woodburn and Wedge, Ziontz Chesnut, and the Center for Biological Diversity. Ormat is represented by Holland & Hart LLP.