ELC Students Argue before (Virtual) Ninth Circuit to Protect the California Desert

On October 13, Stanford Environmental Law Clinic students Amanda Zerbe (’21) and Ryan Gallagher (’21) appeared—via Zoom—before a panel of the Ninth Circuit Court of Appeals to argue on behalf of the National Parks Conservation Association (NPCA) in a dispute involving the Federal Energy Regulatory Commission (FERC), pumped energy storage, and the California desert.

The NPCA v. FERC case is the latest chapter in the Clinic’s and NPCA’s long-running efforts to oppose unwise and unauthorized development on the doorstep of Joshua Tree National Park. In 2010, NPCA successfully sued to prevent a landfill from being developed in a former mining area immediately adjacent to the Park. But while NPCA and the Clinic were busy waging that fight, a different company—Eagle Crest Energy Co.—was developing plans to use the same area for a massive pumped storage energy project.

The project would pump water from a lower-elevation reservoir to a higher-elevation reservoir during times of low energy demand. During periods of high energy demand, water would be allowed to flow from the higher reservoir to the lower one, turning turbines to produce energy.

To operate such a project in the middle of the California desert, Eagle Crest would need to extract staggering quantities of groundwater from an aquifer already taxed by overdraft. The project could also significantly impact many sensitive species in the area, such as desert tortoise and bighorn sheep. And the existence of the project license is a roadblock to incorporating the area into Joshua Tree National Park, despite a 2016 study recommending its inclusion.

Though FERC granted a license to Eagle Crest in 2014, Eagle Crest struggled to make progress on the project. Even after FERC granted a two-year extension of time to start construction, Eagle Crest still had not begun building the project when that extension expired in 2018. The Clinic and NPCA immediately wrote to FERC requesting that it terminate Eagle Crest’s now-expired license, but FERC never responded.

Several months after Eagle Crest’s license expired, Congress passed the America’s Water Infrastructure Act. The Act allowed for additional extensions of the deadline to start construction for active energy licenses. Hoping to revive its dead license, Eagle Crest petitioned FERC for yet another extension of time under this new law. In response, NPCA moved to intervene in that proceeding to explain to FERC that it could not legally apply the new law at all. And even if it could, FERC would need to conduct supplemental National Environmental Policy Act review before making a decision on any extension.

FERC denied NPCA’s motion to intervene, and it approved Eagle Crest’s request for the additional extension. Because FERC did not allow NPCA to participate in the extension proceeding as an official “party,” NPCA was not able to seek direct judicial review of FERC’s decision to extend Eagle Crest’s license. Instead, NPCA filed both a petition to review FERC’s denial of intervention and a petition for writ of mandamus—an “extraordinary remedy”—asking the court to set aside FERC’s extension decision. The Federal Power Act directed NPCA to file those petitions directly before the Ninth Circuit, bypassing the district courts.

Several ELC students worked on the briefing before the Ninth Circuit. C.J. Biggs (’20) drafted the opening brief; Michael Golz (’20) drafted the petition for writ of mandamus; and Michael Golz (’20) and Joseph Zabel (’20) jointly drafted the reply brief.

Amanda and Ryan began preparing for the argument over the summer with clinic supervising attorney Matthew Sanders. The two test-drove their arguments in more than a dozen practice sessions during the months of September and October, fielding questions from fellow advanced Environmental Law Clinic students and supervising attorneys from the Stanford Supreme Court Clinic.

Both students found the argument exciting and fulfilling. “It wasn’t lost on either of us how special this opportunity was, and we both had some nerves associated with that,” said Ryan. “But Matt, Debbie, and everyone else helped prepare us well enough that the argument itself flew by. Eight minutes is no time at all when you’re actually answering questions.”

“Preparing for and presenting argument was an incredible learning experience,” added Amanda, “and it was very rewarding to be a part of the Clinic’s and NPCA’s efforts to protect this extraordinary ecosystem.”

Watch Amanda and Ryan in action:

ELC Students Argue before (Virtual) Ninth Circuit to Protect the California Desert 2