A US district court in Arizona dismissed a lawsuit from Native American, environmental and archeology groups seeking to force wind energy developer Pattern Energy Group LLC to reroute its $4 billion SunZia transmission line.
In a June 6 order, US District Judge Jennifer Zipps granted a motion by defendants — including the US Interior Department, its Bureau of Land Management (BLM) and US Interior Secretary Deb Haaland — to dismiss the case. Zipps concluded that the plaintiffs missed a six-year statute of limitations to contest the BLM's 2015 final decision on the route of the 550-mile line.
The decision, which the plaintiffs plan to challenge in the US Court of Appeals for the 9th Circuit, comes amid renewed efforts to break a stalemate over infrastructure permitting reform in Congress, driven partially by rising demand for renewable electricity and related transmission facilities.
The high-voltage SunZia system is designed to deliver over 3,500 MW from a $7 billion fleet of wind farms in New Mexico to customers largely in California and Arizona. The total $11 billion development, touted as "the largest clean energy infrastructure project in US history," began full-scale construction after the BLM issued notifications to proceed in September and November 2023, and Pattern secured financing in December 2023.
SunZia's pathway runs through Arizona's San Pedro Valley, which the plaintiffs argued should be protected.
In response to the BLM notifications, the San Carlos Apache Tribe, the Tohono O'odham Nation, Archaeology Southwest and the Center for Biological Diversity filed their complaint in January, alleging the agency violated the National Historic Preservation Act by failing to flag the San Pedro Valley as a traditional cultural property and neglecting to meaningfully consult with the tribes.
But Zipps said the plaintiffs failed to "plausibly" allege that the BLM violated the law and said the clock had run out on legal challenges because the project route was approved in 2015, not by the 2023 notices.
'Classic bait and switch'
Robin Silver, a co-founder of the Center for Biological Diversity, rejected the judge's treatment of the statute of limitations.
"It did time out with respect to the National Environmental Policy Act," Silver said in an interview. "But the tribes, in particular, have been waiting to be consulted under the National Historic Preservation Act for years. ... They've been waiting, and it never happened ... that's the major point of appeal."
Silver is concerned about the precedent the case could set for other large-scale energy and mining projects.
"If [the order] stands then it means that the Bureau of Land Management and any federal agency can then just continue to play shell games with tribes and not obey the law to the letter," Silver said. "It's a classic bait and switch."
Pattern could have taken a less damaging route but chose not to because of profit motives, Silver alleged.
"The 'greenrush' to build infrastructure of solar and wind generation is not a rationale for gutting one of America's last great places and running roughshod over the rights of Indigenous peoples," John Welch, director of Archaeology Southwest's landscape and site preservation program, said in an email.
San Francisco-headquartered Pattern Energy, which is owned by the Canada Pension Plan Investment Board, applauded the dismissal and defended its business ethics.
"This decision provides assurance moving forward that projects that follow permitting processes and obtain proper approvals will not be threatened years later by baseless legal claims," Cary Kottler, chief development officer at Pattern, said in an email. "We remain committed to carrying out our work with the same integrity and dedication that has always defined us, including in a manner that is respectful of tribal sovereignty and cultural resources protection."
The dismissal is "a win for the people of Arizona," Kottler added, citing the creation of thousands of jobs and "billions in economic development and investments."
A BLM spokesperson declined to comment on the decision.