Case 3:21-cv-00512-LRH-WGC Document 1 Filed 12/15/21 Page 1 of 51
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`SCOTT LAKE
`NV Bar No. 15765
`CENTER FOR BIOLOGICAL DIVERSITY
`P.O. Box 6205
`Reno, NV 89513
`Phone: (802) 299-7495
`Email: slake@biologicaldiversity.org
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`Attorney for Plaintiff Center for Biological Diversity
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`GORDON DEPAOLI
`NV Bar. No. 0195
`WOODBURN AND WEDGE
`6100 Neil Road, Suite 500
`Reno, NV 89511
`Phone: (775) 688-3010
`Email: gdepaoli@woodburnandwedge.com
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`Local Counsel for Plaintiff Fallon Paiute-Shoshone Tribe
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`WYATT GOLDING
`WA Bar No. 44412 (will comply with LR IA 11-2 within 9 days)
`ZIONTZ CHESTNUT
`1230 Fourth Ave, Suite 1230
`Seattle, WA 98070
`Phone: (206) 480-1230
`Email: wgolding@ziontzchestnut.com
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`Attorney for Plaintiff Fallon Paiute-Shoshone Tribe
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`Case No.:
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`Plaintiffs,
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`vs.
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`The FALLON PAIUTE-SHOSHONE TRIBE
`and the CENTER FOR BIOLOGICAL
`DIVERSITY;
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`U.S. DEPARTMENT OF THE INTERIOR,
`BUREAU OF LAND MANAGEMENT, and
`JAKE VIALPANDO in his official capacity as
`Field Manager of the Bureau of Land
`Management Stillwater Field Office;
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`Defendants.
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`Case 3:21-cv-00512-LRH-WGC Document 1 Filed 12/15/21 Page 2 of 51
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`Plaintiffs, the FALLON PAIUTE-SHOSHONE TRIBE (the “Tribe”) and the CENTER FOR
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`BIOLOGICAL DIVERSITY (the “Center”) and by and through their attorneys of record, hereby
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`complain and allege as follows:
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` INTRODUCTION
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`1.
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`The Tribe and the Center challenge Defendants’ failure to comply with the National
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`Environmental Policy Act (“NEPA”), the Federal Land Policy and Management Act (“FLPMA”), the
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`Religious Freedom Restoration Act (“RFRA”), the Administrative Procedure Act (“APA”), and
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`Defendants’ trust responsibilities to the Tribe in issuing a Final Environmental Assessment, Finding
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`of No Significant Impact, and Decision Record authorizing the Dixie Meadows Geothermal Utilization
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`Project (“Project”).
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`2.
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`The Project is a proposal to build two geothermal powerplants, 18 or more geothermal
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`wells, access roads, and 48 miles of transmission line on approximately 2,000 acres of public land in
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`Dixie Valley in north-central Nevada. The Project would extract underground geothermal fluid, use
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`its heat to generate electricity, and reinject the same fluid underground at a cooler temperature.
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`Because the Project would use federal geothermal resources and construct facilities on federal public
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`land, the Project can only proceed if authorized by Defendant Bureau of Land Management (“BLM”).
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`3.
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`Construction and operation of the Project would occur directly adjacent to Dixie
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`Meadows Hot Springs and utilize the same geothermal fluid that heats the springs. The Hot Springs
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`are a sacred healing site for the Tribe, with immense spiritual meaning and value to the Tribe’s culture,
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`religion, history, and way of life. The Tribe’s members and ancestors have resided in the Dixie Valley
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`region for more than 10,000 years, as documented in the Tribe’s oral histories and through genetic
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`evaluation of the Spirit Cave human remains. The Tribe’s longstanding use of the Dixie Meadows Hot
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`Springs as a sacred site and landscape is well-documented in oral histories and ethnographies. In the
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`Tribe’s belief system, the Hot Springs, together with the associated ecosystem and landscape,
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`comprise an animate, living entity entitled to reverence and respect
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`4.
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`The Hot Springs create a rare and unique wetland spring environment that, in addition
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`to holding immense cultural, religious, historical, and spiritual significance to the Tribe, provides the
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`Case 3:21-cv-00512-LRH-WGC Document 1 Filed 12/15/21 Page 3 of 51
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`only known habitat for the Dixie Valley toad (Anaxyrus williamsi). The U.S. Fish and Wildlife Service
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`(“FWS”) has concluded that “substantial scientific or commercial information” may support listing
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`the Dixie Valley toad under the Endangered Species Act (“ESA”), in part due to the threat posed by
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`geothermal development, which could reduce or eliminate the toad’s habitat.
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`5.
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`The Project’s proposed use of geothermal fluids is likely to permanently degrade the
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`Hot Springs and their associated ecosystem. Geothermal energy developments like the Project have
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`significantly altered or even eliminated nearby thermal springs because the geothermal resources used
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`for power generation often flow from the same underground reservoir that feeds springs on the surface.
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`A similar geothermal power facility authorized by BLM, constructed and operated by the Project
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`developer, and located approximately 40 miles away from the Project site likely caused nearby hot
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`springs in Jersey Valley, Nevada to stop flowing entirely.
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`6.
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`By significantly altering the water quantity, temperature, and quality in the Hot Springs,
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`operation of the Project risks extinction of the Dixie Valley toad and permanent impairment of the
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`Tribe’s exercise of its cultural, religious, and spiritual practices. Construction of the Project will also
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`eliminate much of the toad’s terrestrial habitat. Despite these risks—and despite numerous detailed
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`comment letters from the Tribe, the Center, the U.S. Fish and Wildlife Service, the Nevada Department
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`of Wildlife, and the U.S. Navy warning Defendants of the grave threat that the Project poses to the
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`Hot Springs and associated ecosystem—Defendants unlawfully approved the Project without adequate
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`environmental analysis and planning, as required under NEPA, and without ensuring that any impacts
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`to the Hot Springs and the wildlife species that depend on them will be adequately avoided or
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`mitigated, as required under BLM’s own policies and FLPMA.
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`7.
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`In addition to posing significant risk of permanent irreparable harm to the Hot Springs
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`and associated ecosystem, the Project would turn a pristine and unique location of ecological value
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`and spiritual significance into an industrial site. The Tribe’s cultural, religious, and spiritual practices
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`involve quiet contemplation at the undisturbed Hot Springs. Construction and operation of the Project
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`would damage the Tribe by creating significant noise, light, and visual obstruction at their sacred site.
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`Powerplant construction and operation in and around the Hot Springs would substantially burden
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`Case 3:21-cv-00512-LRH-WGC Document 1 Filed 12/15/21 Page 4 of 51
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`Tribal members’ religious exercise without compelling justification, and violate Defendants’ trust
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`responsibilities to the Tribe.
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`8.
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`The Tribe and the Center specifically challenge: (1) Defendant BLM’s August 2021
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`Final Environmental Assessment (“EA”) for the Dixie Meadows Geothermal Utilization Project as
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`unlawful under NEPA and FLPMA and arbitrary and capricious under the APA; (2) Defendant BLM’s
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`November 23, 2021 Finding of No Significant Impact (“FONSI”) concerning the Dixie Meadows
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`Geothermal Utilization Project as unlawful under NEPA and FLPMA and arbitrary and capricious
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`under the APA; and (3) Defendant BLM’s November 23, 2021 Decision Record authorizing the Dixie
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`Meadows Geothermal Utilization Project as unlawful under NEPA, FLPMA, and RFRA, arbitrary and
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`capricious under the APA, and (4) Defendants’ statutory violations as contrary to their trust
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`responsibilities to the Tribe.
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`9.
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`The Tribe and the Center seek a declaration that Defendants violated NEPA, FLPMA
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`and APA in issuing and approving the August 2021 Final EA; that Defendants violated NEPA,
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`FLPMA and the APA in issuing the November 23, 2021 FONSI; that Defendants violated NEPA,
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`FLPMA, RFRA, and the APA in unlawfully issuing and approving the November 23, 2021 Decision
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`Record based on the Final EA and FONSI; that Defendants’ approval of the Project was arbitrary,
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`capricious, and an abuse of discretion under the APA; and that these violations represent a breach of
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`Defendants’ trust responsibilities to the Tribe. The Tribe and the Center further seek vacatur of the
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`Final EA, FONSI, and Decision Record, as well as preliminary and permanent injunctive relief to
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`enjoin any implementation of the Decision Record.
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`JURISDICTION
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`10.
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`Jurisdiction is proper in this Court under 28 U.S.C. § 1331 (federal question), 28 U.S.C.
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`§ 1346 (United States as defendant), 42 U.S.C. § 2000bb-1 (Religious Freedom Restoration Act), and
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`5 U.S.C. §§ 551-706 (Administrative Procedure Act), because this action involves the United States
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`as a defendant, concerns a government-imposed substantial burden on religious exercise, and arises
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`under the laws of the United States, including NEPA, 42 U.S.C. § 4332, FLPMA, 43 U.S.C. §§ 1701-
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`1736, 1737-1782, RFRA, 42 U.S.C. §§ 2000bb-2000bb-4 and the APA, 5 U.S.C. §§ 551-706. An
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`Case 3:21-cv-00512-LRH-WGC Document 1 Filed 12/15/21 Page 5 of 51
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`actual justiciable controversy exists between Plaintiffs and Defendants. The requested relief is proper
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`under 28 U.S.C. §§ 2201 and 2202 (Declaratory Judgment Act); 42 U.S.C. § 2000bb-1 (RFRA); and
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`5 U.S.C. §§ 705 and 706 (Administrative Procedure Act). The challenged agency actions are final and
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`subject to this Court’s review under 5 U.S.C. §§ 702, 704, and 706 (Administrative Procedure Act).
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`VENUE
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`11.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because Defendants have
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`offices in this judicial district, a substantial part of the events or omissions giving rise to the claims in
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`this Complaint occurred in this judicial district, and the lands involved in this case are located in this
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`judicial district.
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`12.
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`Venue is proper in the Northern Division of this District, as the challenge involves
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`federal lands and resources in Churchill County, Nevada. L.R. 1A 8-1.
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`PARTIES
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`13.
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`The Fallon Paiute-Shoshone Tribe is a sovereign, federally recognized Indian Tribe
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`whose members have lived upon and used the lands affected by the Project since time immemorial.
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`See 86 Fed. Reg. 7554, 7556 (January 29, 2021). The Tribe refers to itself as the Toi-Ticutta, or “Cattail
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`eaters,” because Tribal members have long subsisted on native plants including cattails from marshes
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`such as those in Dixie Meadows. The Tribe has used marsh plants to create housing, clothing, hunting
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`decoys, and other material objects such as baskets and hats. The Tribe is currently based on a small
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`Reservation in Churchill County, near the City of Fallon, Nevada. The Tribe has approximately 1,500
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`members, most of whom reside on the Reservation. Because the Tribe was placed on a small
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`Reservation by the United States, Tribal members rely on federal public lands, including BLM-
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`managed lands in Dixie Valley, to continue their way of life and maintain connection to their cultural
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`and spiritual values.
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`14. Many Tribal members, including enrolled Tribal member and Tribal Historic
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`Preservation Officer Rochanne Downs, derive enjoyment and health, spiritual, and religious benefits
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`from their activities in and around Dixie Meadows. Use of Dixie Meadows Hot Springs and the
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`surrounding area connects Tribal members to their history, culture, and way of life.
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`Case 3:21-cv-00512-LRH-WGC Document 1 Filed 12/15/21 Page 6 of 51
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`15. Many Tribal members, including Ms. Downs, consider Dixie Meadows Hot Springs
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`sacred in their natural, undisturbed state due to their undamaged connection to the natural world, as
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`well as their healing properties. According to the Tribe’s worldview, the Creator made Dixie
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`Meadows, its ecosystem, and its landscape perfectly, in part to nurture and sustain the Tribe and its
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`members. Dixie Meadows Hot Springs is a sacred site and part of a traditional cultural landscape.
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`16.
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`Tribal members, including Ms. Downs, regularly visit Dixie Meadows to avail
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`themselves of the Hot Springs’ healing properties and partake in their traditional spiritual, religious,
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`and cultural practices. These practices include: using mud for healing, soaking, camping, and
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`harvesting native plants for weaving and other uses. These practices require quiet for contemplation,
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`and darkness to see the night sky. During the day, Ms. Downs values the ability to view Fox Peak, the
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`Tribe’s origin site. The peak is visible from the Hot Springs and viewing it in an undisturbed landscape
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`allows Ms. Downs to reflect on the Tribe’s origin and presence in the region since time immemorial.
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`At night, she values being able to see a full starry sky in order to reflect on the vastness of creation
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`and the blessing of being present as a Native person at the sacred springs.
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`17.
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`Tribal members, including Ms. Downs, plan to continue to use and enjoy the Dixie
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`Meadows area regularly and on an ongoing basis in the future, including this winter and spring. Many
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`of the other springs in the area have been damaged or ruined by development. Dixie Meadows Hot
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`Springs is therefore the most important and sacred spring to the Tribe, and one of the very last
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`remaining springs in the area. The cumulative impacts of past development, including geothermal
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`energy development, make Dixie Meadows Hot Springs especially important.
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`18.
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`Construction and operation of the Project would harm the Tribe, Ms. Downs, and other
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`Tribal members by changing a natural setting into an industrial setting with substantial noise, traffic,
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`light, and presence of two 32-acre powerplants, 18 wells, and associated infrastructure. Operation of
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`the project would harm the Tribe, Ms. Downs, and other Tribal members by altering the springs’ water
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`quantity or quality, the surrounding ecosystem, and the landscape, thereby reducing Tribal members’
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`ability to carry out their cultural and spiritual practices. If the Project changes the Hot Springs’ water
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`or causes the springs to dry up, it would be devastating to Ms. Downs and other Tribal members.
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`Case 3:21-cv-00512-LRH-WGC Document 1 Filed 12/15/21 Page 7 of 51
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`19.
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`The Project’s alteration of the pristine and natural sacred Hot Springs site violates Ms.
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`Downs’ and other Tribal members’ religious, cultural, and spiritual values, and reduces their ability to
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`carry out their way of life. Ms. Downs would no longer have an unobstructed view of Fox Peak or the
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`night sky and would no longer be able to appreciate surrounding nature as the Creator intended. It
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`would also cause Ms. Downs tremendous grief to observe the land on a sacred site bulldozed and
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`disturbed, and a wide variety of industrial infrastructure installed. Ms. Downs and other Tribal
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`members’ ability to exercise their religion at the Hot Springs would be substantially impaired if not
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`wholly eliminated if the Project is constructed.
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`20.
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`Defendants’ violations of law, including NEPA, FLPMA, RFRA, the APA, and
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`Defendants’ trust duties to the Tribe cause procedural and concrete harms to the Tribe and its members,
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`including Ms. Downs. For example, Defendants’ failure to adequately evaluate and disclose the
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`conflicting views of various experts regarding the likely impacts of geothermal extraction on the Hot
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`Springs deprives Tribal members of the ability to meaningfully participate in the Defendants’
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`decisionmaking process. Additionally, Defendants’ failure to adequately consider the environmental
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`justice impacts to the Tribe, and forcing the Tribe to bear a disproportionate burden of the impacts
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`from energy production, harm Ms. Downs and the Tribe.
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`21.
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`Tribal members’ health, spiritual, religious, inspirational, and recreational interests
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`have been and will continue to be adversely affected and irreparably injured if Defendants’ ongoing
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`violations of NEPA, FLPMA, RFRA, the APA, and Defendants’ trust responsibilities continue. As
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`detailed above, construction and operation of the Project would cause actual, concrete injuries to Tribal
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`members. The relief sought will redress these injuries to the Tribe and its members.
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`22.
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`The Center is a non-profit corporation headquartered in Tucson, Arizona, with offices
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`and staff in several states including Nevada. The Center works through science, law, and policy to
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`secure a future for all species, great or small, hovering on the brink of extinction. The Center is actively
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`involved in endangered species and habitat protection nationwide, and has more than 89,000 members
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`throughout the United States and the world, including 745 members in Nevada.
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`23.
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`The Center brings this action on its own behalf, and on behalf of its members who
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`derive scientific, aesthetic, recreational, and spiritual benefits from the Dixie Meadows area and the
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`narrowly endemic wildlife species that would be significantly impacted by the construction and
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`operation of the Project.
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`24.
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`The Center’s members, including Patrick Donnelly, the Center’s Nevada State
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`Director, use and enjoy the federal lands in and around Dixie Meadows for a variety of purposes,
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`including hiking, camping, photographing scenery and wildlife, viewing wildlife and signs of wildlife,
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`and engaging in other vocational, scientific, spiritual, and recreational activities. The areas in and
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`around the Dixie Meadows that Mr. Donnelly and other Center members use and enjoy include specific
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`areas impacted by the construction and operation of the Project, and specific areas where the Dixie
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`Valley toad may be found.
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`25. Mr. Donnelly first visited Dixie Meadows on June 20, 2017. During this visit he
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`observed the wetland complex in a “robust” and pristine condition, with healthy riparian and aquatic
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`vegetation. He next visited on June 21, 2017 in the early morning. During this visit he observed
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`“hundreds” of Dixie Valley toads and took dozens of photographs and videos. He describes this visit
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`as “one of the most enjoyable mornings” he has “ever had in the desert.” Mr. Donnelly returned to
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`Dixie Meadows on July 29, 2018 to check on the status of geothermal exploration near the wetlands.
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`On December 26, 2019 Mr. Donnelly visited again and observed flowing water in the marsh and green
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`vegetation in the wetland. For him, this visit exemplified the features that make Dixie Meadows a
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`special and irreplaceable location. Mr. Donnelly visited Dixie Meadows yet again on December 13,
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`2021 to check on the status of Project development.
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`26. Mr. Donnelly and other Center members derive health, aesthetic, recreational,
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`inspirational, spiritual, scientific, and educational benefits from their activities in and around Dixie
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`Meadows. Mr. Donnelly intends to continue to use and enjoy the Dixie Meadows area frequently and
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`on an ongoing basis in the future, including in January 2022. Mr. Donnelly derives particular
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`enjoyment and inspiration for endemic desert species such as the Dixie Valley toad, and utilizes these
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`rare and irreplaceable species and ecosystems for exploration, spiritual contemplation, and
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`Case 3:21-cv-00512-LRH-WGC Document 1 Filed 12/15/21 Page 9 of 51
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`photography. Mr. Donnelly also values the natural, quiet, and serene character of the Dixie Meadows
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`area that would be irreparably damaged by Project construction. The areas that Mr. Donnelly and other
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`Center members intend to continue to use and enjoy include specific areas that the construction and
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`operation of the Project would directly and indirectly affect, and specific areas where the Dixie Valley
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`toad may be found.
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`27.
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`The health, aesthetic, recreational, inspirational, spiritual, scientific, and educational
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`interests of Mr. Donnelly and other Center members have been and will continue to be adversely
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`affected and irreparably injured if Defendants’ ongoing violations of NEPA, FLPMA, and the APA
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`continue. As explained herein, geothermal energy development is known to have significant impacts
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`on adjacent surface water features, impacts that are rendered even more likely through Defendants’
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`failure to understand or properly analyze the Project’s environmental impacts. In addition, Project
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`construction will bring noise, light pollution, traffic, disturbance, and destruction of natural habitats
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`that will harm Mr. Donnelly’s and other Center members’ use and enjoyment of the area in its current,
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`largely natural and undisturbed state. These are actual, concrete injuries caused by the Defendants’
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`violations of NEPA, FLPMA, and the APA. The relief sought will redress these injuries to the Center
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`and its members by halting the damage to the Hot Springs and the surrounding area from construction
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`and operation of the Project.
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`28.
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`Defendants’ failure to comply with NEPA additionally harms the Plaintiffs by denying
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`them the right to informed decisionmaking and full disclosure under NEPA, as well as the right to
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`meaningfully participate in the decisionmaking process.
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`29.
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`Defendant U.S. Department of the Interior (“Interior”) is a cabinet-level executive
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`agency responsible for, among other things, managing federally-owned lands, wildlife, and public
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`natural resources throughout the United States. Interior has the ultimate responsibility to administer
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`and implement FLPMA, and to comply with all other applicable federal laws, including NEPA and
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`RFRA.
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`30.
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`Defendant Bureau of Land Management is an agency within the U.S. Department of
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`the Interior. BLM and its officers are responsible for administering federally-owned public lands and
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`natural resources, and all federal laws applicable thereto, including NEPA and FLPMA.
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`31.
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`Defendant Jake Vialpando is the Field Office Manager for BLM’s Stillwater Field
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`Office. As Field Office Manager, Mr. Vialpando is responsible for administering and managing public
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`lands and resources within the Stillwater Field Office, including lands and resources located in Dixie
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`Valley. Mr. Vialpando signed the November 23, 2021 FONSI and Decision Record authorizing the
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`Project. Mr. Vialpando is sued in his official capacity.
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`LEGAL BACKGROUND
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`A.
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`The National Environmental Policy Act
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`32.
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`NEPA is our “basic national charter for protection of the environment.” 40 C.F.R. §
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`1500.1(a). It serves twin goals. First, it aims to ensure that federal agencies carefully consider detailed
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`information regarding the environmental impact of a proposed action before reaching a decision on
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`the action. Second, it ensures that information about a proposal’s environmental impact is made
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`available to members of the public so that they may play a role in the decision-making process. NEPA
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`ensures that important effects will not be overlooked or underestimated only be discovered after
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`resources have been committed or the die otherwise cast.
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`33.
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`The White House Council on Environmental Quality (“CEQ”) has promulgated
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`regulations implementing NEPA. See 40 C.F.R. § 1507.3(b) (1978). On July 16, 2020 CEQ published
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`a Final Rule significantly revising these regulations. 85 Fed. Reg. 43304-76 (July 16, 2020). The Final
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`Rule took effect on September 14, 2020, and applied to federal projects begun after September 14,
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`2020. Id. at 43372-73. The Project was begun well before September 14, 2020, and BLM applied the
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`pre-2020 regulations in its NEPA process for the Project. Accordingly the regulations in effect before
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`the promulgation of CEQ’s July 16, 2020 Final Rule apply to the Project and are cited throughout this
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`Complaint.
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`34.
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`NEPA and its implementing regulations require federal agencies to prepare an
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`environmental impact statement (“EIS”) for all “major Federal actions significantly affecting the
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`quality of the human environment.” 42 U.S.C. § 4332(C)(i); 40 C.F.R. § 1501.4. A federal agency
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`action may be “significant,” and thus require an EIS, if: it affects unique environmental characteristics
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`such as wetlands or ecologically critical areas, 40 C.F.R. §1508.27(3); the action’s effects on the
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`quality of the human environment are likely to be highly controversial, 40 C.F.R. §1508.27(4); the
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`action’s possible effects on the human environment are highly uncertain or involve unique or unknown
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`risks, 40 C.F.R. §1508.27(5); the action may establish a precedent for future actions with significant
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`effects or represents a decision in principle about a future consideration, 40 C.F.R. §1508.27(6); the
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`action is related to other actions with individually insignificant but cumulatively significant impacts,
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`40 C.F.R. §1508.27(7); or the action may adversely affect districts, sites, highways, structures, or
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`objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or
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`destruction of significant scientific, cultural, or historical resources, 40 CFR §1508.27(8).
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`35.
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`An agency may first prepare an EA to determine whether an EIS is necessary. 40 C.F.R.
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`§§ 1501.4, 1508.9. If, after preparing an EA, the agency decides that an EIS is not necessary, the
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`agency must prepare an explanatory Finding of No Significant Impact (“FONSI”) which “briefly
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`present[s] the reasons why an action . . . will not have a significant effect on the human environment.”
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`40 C.F.R. § 1508.13.
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`36. Whether the agency prepares an EA or an EIS, the agency must take a “hard look” at
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`all direct, indirect, and cumulative environmental impacts of the proposed action and reasonable
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`alternatives thereto. 40 C.F.R. §§ 1502.14, 1502.16. To fulfill its purpose, the agency’s environmental
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`analysis must “provide full and fair discussion of significant environmental impacts and . . . inform
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`decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse
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`impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1.
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`37.
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`Part of the evaluation of environmental effects is consideration of possible outcomes
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`that would be especially harmful. This analysis is particularly essential where a project includes
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`uncertain impacts.
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`38.
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`To comply with NEPA’s requirements, the agency must set an appropriate
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`environmental baseline detailing the nature and extent of the resources in the affected area. The
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`concept of a baseline against which to compare predictions of the effects of the proposed action and
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`reasonable alternatives is critical to the NEPA process. Without establishing baseline conditions, there
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`is no way to objectively or accurately determine what effect an action will have on the environment
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`and, consequently, no way to comply with NEPA. The duty to perform a baseline analysis of
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`environmental conditions before assessing the impacts of a proposed action on the environment applies
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`to EAs and well as EISs.
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`39. Where an agency attempts to avoid the EIS requirement by relying on proposed
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`mitigation measures to avoid any significant environmental impacts, NEPA requires that the agency
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`provide analytical data to support the proposed mitigation measures. A mere listing of mitigation
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`measures is insufficient to qualify as the reasoned discussion required by NEPA. Any proposed
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`mitigation measures must be carefully considered, based on scientific studies, and specifically
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`designed to protect against significant environmental harm. An agency’s mitigation discussion in an
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`EA or EIS should focus on the effectiveness of any proposed mitigation measures.
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`40.
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`Agencies may not avoid gathering the information needed to assess a proposed
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`project’s environmental impact by committing to “mitigation measures” that take the form of
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`information-gathering efforts to be taken after the project commences. Mitigation measures may help
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`alleviate impacts after construction, but do not help in evaluating and understanding the impacts of the
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`proposal before construction. Reliance on mitigation measure to provide information unavailable at
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`the time of project approval assumes—regardless of what effects construction may have on
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`resources—that there are mitigation measures that might counteract the effect, without first
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`understanding the extent of the problem. In other words, such an approach is based on an implicit
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`assumption that all impacts are mitigable.
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`41. Moreover, the use of mitigation measures as a proxy for baseline data frustrates
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`NEPA’s “stop-and-think” disclosure purposes—it precludes careful consideration of a proposal’s
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`impacts before the point of commitment and deprives the public of the opportunity to play a role in
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`the decisionmaking process because the any data collected after project approval are not available for
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`public comment.
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`42.
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`An EA or EIS must rigorously explore and objectively evaluate reasonable alternatives
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`to the proposed action, including a baseline alternative of taking “no action.” 40 C.F.R. § 1502.14.
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`The NEPA implementing regulations refer to the selection and review of alternatives as “the heart” of
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`the environmental analysis. 40 C.F.R. § 1502.14. Comparison of the alternatives helps to “sharply
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`defin[e] the issues and provid[e] a clear basis for choice among options by the decision maker and the
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`public.” Id. The agency must “study, develop, and describe appropriate alternatives to recommend
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`courses of action in any proposal which involves unresolved conflicts concerning alternative uses of
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`available resources.” 42 U.S.C. § 4332(2)(E). Even if an agency prepares only an EA, it may violate
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`NEPA if it limits its examination to its primary, preferred alternatives.
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`43.
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`An EA or EIS must also consider a project’s cumulative impacts. A cumulative impact
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`is “the impact on the environment which results from the incremental impact of the action when added
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`to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or
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`non-Federal) or person undertakes such other action.” 40 C.F.R. § 1508.7. “Cumulative impacts can
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`result from individually minor but collectively significant actions taking place over a period of time.”
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`Id. A cumulative impacts analysis must be more than perfunctory; it must provide a useful analysis of
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`the cumulative impacts of past, present, and future projects. To be useful to decision makers and the
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`public, the cumulative impacts analysis must include some quantified or detailed information; general
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`statements about possible effects and some risk do not constitute a “hard look” absent a justification
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`regarding