New national forest multiple use clears local permitting hurdle

The Deerfield wind energy project on the Green Mountain National Forest in Vermont is a step closer to reality.  I wonder about the special use permit requirement that permits may be granted only if the proposed use cannot reasonably be accommodated on non-National Forest System lands.

4 Comments

  1. Thanks, Tony. I assumed it had been answered as a “yes,” but I wondered how. Can you enlighten us on what kind of a showing was made in this case to comply with this requirement? (“At your leisure.”)

  2. “A LONG time ago” = circa 2004.

    The 2011 FEIS explains that “The existing Searsburg facility is located on 35 acres of private forestlands abutting GMNF lands. Locating the Project near the existing wind facility would allow shared use of some infrastructure (primarily access roads) and limit some impacts to a general area where disturbance has already occurred.”

    In 2014, a federal district court ruled against environmental plaintiffs on this score:

    Plaintiffs also argue the Forest Service’s failure to include any non-Green Mountain National Forest land as an alternative was arbitrary and capricious. The Forest Service considered specific private land tracts identified by the public but declined to pursue detailed analysis of any such land as a possible alternative because that “would be beyond the scope” of the environmental impact statement. FEIS at 30-31. Because the range of alternatives that must be discussed is a matter within an agency’s discretion, and the Forest Service considered and declined to include private land, the Court finds the Forest Service did not abuse its discretion. See 40 C.F.R. § 1502.14(a); Friends of Ompompanoosuc, 968 F.2d at 1558.. Vermonters for a Clean Env’t, Inc. v. Madrid, 73 F. Supp. 3d 417, 427 (D. Vt. 2014)

    In sum, this issue was addressed, analyzed, and litigated.

  3. Thanks for the cite and quote, Andy. I can somewhat understand this result from a NEPA perspective. I agree that the range of alternatives is within the agency’s discretion to the extent that the purpose and need is within the agency’s discretion. I question whether there is complete discretion to limit the scope of the purpose and need to public land where there is a separate requirement to consider alternatives on private land. The quoted language from the court seems to put that consideration outside of the NEPA process. That doesn’t seem right.

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