August 1, 2022 - 4:42 pm
RENO— The developer of a geothermal power plant facing legal challenges in Nevada agreed Monday to suspend construction just hours after a U.S. appeals court had refused to halt the project that opponents say would harm an endangered toad and destroy sacred hot springs.
In a ruling Monday morning, a three-judge panel of the 9th U.S. Circuit Court of Appeals rejected a bid by environmentalists and a Nevada tribe to reinstate an injunction that temporarily blocked work earlier this year on Ormat Nevada’s plant 100 miles east of Reno.
But hours later, lawyers for Ormat, the government, environmentalists and the tribe filed a joint stipulation in federal court in Reno outlining a voluntary agreement to suspend construction for at least 30 days — and perhaps until the end of the year.
The unusual turn of events comes after the U.S. Fish and Wildlife Service took the rare step of declaring the Dixie Valley toad endangered on a temporary emergency basis in April — something the agency has done only one other time in 20 years.
The project would generate carbon-free power by pumping hot water from beneath the earth. The Fish and Wildlife Service concluded it could lead to the extinction of the toad by adversely impacting underground reservoirs that feed wetlands in the only place the speckled toad, about the size of a quarter, is known to exist.
Monday’s panel ruling from the San Francisco-based 9th Circuit, which heard oral arguments on the appeal in June, said it couldn’t consider the emergency listing because it happened after the appeal was filed in January.
But the Center for Biological Diversity and the Fallon Paiute-Shoshone Tribe amended their suit last month to include the listing. They alleged that Ormat and the bureau were now in violation of the Endangered Species Act’s requirement that they consult with the Fish and Wildlife Service before proceeding with any activity that could harm a protected species.
The new agreement filed Monday acknowledges that the formal consultation must be completed so any risks to the toad can be fully evaluated before it suffers any irreparable harm.
Ormat agreed to suspend construction until the wildlife service issues a formal biological opinion following the consultation, or until Dec. 31, whichever comes first. It also agreed to provide 30 days’ notice before it would resume any construction.
“This agreement comes just in the nick of time to save this little toad from extinction,” said Patrick Donnelly, Great Basin director for the Center for Biological Diversity. “We support geothermal energy, but it can’t come at the cost of biodiversity.”
The 9th Circuit’s panel ruling earlier Monday said that further delay of the project would make it “all but certain” Ormat would be unable to meet a contract deadline to complete construction by the end of this year.
Ormat said failure to meet the deadline would cost the company $30 million over 20 years and could jeopardize the entire project, which was approved by the U.S. Bureau of Land Management in November.
“Beyond the economic losses to Ormat,” the panel said, “the district court properly considered the public interest in a ‘source of carbon-free baseload electricity,’ royalty returns to the federal government, and state and local taxes which would be collected as a result of the project.”
Ormat Vice President Paul Thomsen said in a statement emailed to The Associated Press earlier Monday that the Reno-based company was pleased with the 9th Circuit’s decision because it “recognized that plaintiffs are not likely to succeed on the merits in this case.”
He didn’t immediately respond to a request for additional comment after the new agreement was filed Monday afternoon.
The joint stipulation outlines a schedule with filing deadlines as U.S. District Judge Robert C. Jones in Reno continues to consider the case on its merits.
Ormat’s plant would generate power using heat from geothermal fluid extracted from deep underground reservoirs near the hot springs where Native Americans have worshipped for thousands of years.