Shutdown Depriving Public of Right to Comment on Solar Project

Public access to comments on projects blocked due to shutdown | Image: KCETLink

The ongoing shutdown of the Federal government has thrown a monkey wrench into public review of a large solar power plant proposed for the California desert, and there's no way to find out how the federal government plans to address the issue.

The deadline for public comment on the Draft Supplemental Environmental Impact Statement (DSEIS) for the Palen Solar Electric Generating System in Riverside County is Thursday, October 24, but there's no guarantee that there will be any government employees at work to accept those public comments by then.

Even if staff at the Bureau of Land Management are back to work by then to accept comment submissions, the website hosting the DSEIS documents has been shut down since October 1. That means that members of the public who didn't happen to download the entire range of documents before the shutdown now have no way to consult those documents in order to comment on them.

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The Draft EIS in question, released at the end of July, is a "Supplemental" EIS. That's because a previous version of the Palen project already had an EIS prepared. That project had not yet been approved by the Interior Department when the project's former owner, Solar Trust of America, went bankrupt. BrightSource Energy bought the project at auction in 2012.

BrightSource and its partner Abengoa radically redesigned the project, which had originally been crafted using solar parabolic trough technology. The project is now planned to use BrightSource's proprietary solar power tower design, with hundreds of thousands of mirrored heliostats surrounding two 750-foot towers. The Draft Supplemental EIS examines impacts from those new design features not addressed in the previous EIS.

The law that requires federal environmental review of projects like Palen, the National Environmental Policy Act (NEPA), doesn't include provisions to address the effects of a government shutdown during a public comment period. The law requires only a 45-day comment period for a draft EIS, but allows agencies to set their own default comment periods. The BLM typically allots 90 days for comment on a Draft EIS, starting when a Notice of Availability of the document is published in the Federal Register.

You can still read the Notice of Availability for Palen's DSEIS on the Federal Register, but the link to the documents that are the subject of comments -- http://www.blm.gov/ca/st/en/fo/palmsprings/Solar_Projects/palen_solar_electric.html -- now leads to a boilerplate Interior Department shutdown site.

Which means that unless you completed your comments more than two weeks early, you may not be able to do so at all.

Complicating this blockage of public comment is the fact that at two public comment meetings on the Palen DSEIS held in September, the BLM did not provide transcription services so that verbal comments could be entered into the record -- a violation of NEPA procedure.

Left to its own devices, the BLM would very likely extend the public comment period by at least the length of the shutdown. (That's a guess on ReWire's part, as the BLM staff person in charge of the NEPA process for Palen, Frank McMenimen, has been furloughed and is not allowed to speak with press. A query made to Interior Department non-furloughed Interior staff was not returned by press time.) Federal employees will be stretched to the limit on their eventual return to their desks, and an extension would make their jobs easier as well as forestalling possible legal action from advocates of the public's right to comment on projects under NEPA.

But BrightSource and Abengoa are in a hurry to get Palen approved, as the joint venture is facing deadlines from lenders that require the project be approved by both the Interior Department and the California Energy Commission (CEC) by the end of the year. BrightSource staff have made much of this looming deadline in testimony before the CEC this year, objecting to requests for more detailed surveys of cultural resources and similar issues.

So the BLM may find itself under pressure to proceed as planned without extending public comment on the DSEIS. That strategy would be risky for BrightSource and Abengoa: members of the public could protest the shortened public comment period by filing administrative appeals with the BLM, and if the agency doesn't reverse its course, those citizens could drag the matter before a Federal judge under the Administrative Procedure Act. That process would almost certainly resolve badly for Palen's backers, with the strong possibility a judge would order the BLM to re-open comment on the Draft SEIS, significantly delaying the project.

Technically speaking, you can still submit your comments on Palen's Draft Supplemental Environmental Impact Statement by mail, and if they arrive by October 24 they're legal even if the BLM doesn't extend the comment period. NEPA attorney Chris Krupp of the Seattle-based Western Lands Project informed ReWire Thursday that a simple statement encouraging the BLM to extend the comment period serves as a perfectly good formal comment.

Regardless of your views on the proposed Palen Solar Electric Generating System, the public has a legal right to offer comment on the project's DSEIS. Comments can be mailed to:

Frank McMenimen, Project Manager,
BLM Palm Springs -- South Coast Field Office,
1201 Bird Center Drive,
Palm Springs, CA 92262

For ongoing environmental coverage in March 2017 and afterward, please visit our show Earth Focus, or browse Redefine for historic material.
KCET's award-winning environment news project Redefine ran from July 2012 through February 2017.

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