Ormat Nevada Inc. v. Burgum

The developer of a geothermal power plant in Nevada filed a lawsuit in federal district court in the District of Columbia challenging emergency and final rules adding the Dixie Valley toad to the list of endangered species under the Endangered Species Act. The rules were issued in 2022. The complaint alleged that the listing was prompted by “a decade-long campaign” by Center for Biological Diversity to use the ESA to prevent construction of the geothermal plant. The complaint alleged that FWS identified the primary threat to the toad as geothermal development but that FWS’s determination that the plaintiffs’ geothermal project would endanger the toad was based on projects that use “dramatically different technology.” The complaint also alleged that FWS “speculated” about harms from factors such as climate change “without considering evidence regarding the likelihood of any one of these threats actually impacting the Dixie Valley toad or the toad’s resilience to these factors.” The developer asserted that FWS failed to apply the correct definitions of “endangered” or “threatened”; failed to consider the best available scientific and commercial information; and “failed to articulate the required rational connection between the facts before the agency in the administrative record and the decision reached to list the Dixie Valley frog” (including by failing to explain its conclusions regarding threats to the species from climate change).