Full opinion text
ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; (2) GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; (3) DENYING DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S DECLARATIONS; (4) DENYING DEFENDANTS’ ORAL MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD; (5) GRANTING PLAINTIFF’S MOTION TO STRIKE SUPPLEMENTAL DECLARATION AND REQUEST FOR JUDICIAL NOTICE; and (6) SETTING BRIEFING SCHEDULE FOR THE REMEDY PHASE OF THE MOTIONS FOR SUMMARY JUDGMENT GONZALEZ, District Judge. Presently before the Court are cross-motions for summary judgement, federal defendants’ motion to strike plaintiffs declarations, defendants’ oral nfotion to supplement the record, and plaintiff Border Power Plant Working Group’s motion to strike amicus Termoeléctrica U.S.’s request for judicial notice and supplemental declaration. For the reasons discussed below, the Court denies in part and grants in part both motions for summary judgment, denies federal defendants’ motions to strike and to supplement the record, and grants plaintiffs motion to strike. BACKGROUND I. Factual Background This case involves two applications for Presidential Permits and federal rights-of-way to build electricity transmission lines within the United States and across the United States-Mexico border to connect new power plants in Mexico with the power grid in Southern California. 1. The BCP Permit and Rightr-of-Way In February 2001, Baja California Power (“BCP”), a wholly-owned subsidiary of Intergen Aztec Energy (“Intergen”), applied to defendant U.S. Department of Energy (“DOE”) for a Presidential Permit to construct and operate an. electric power transmission line across the international border between the United States and Mexico near El Centro, California. (See Pla’s Statement of Undisputed Facts (“PSUF”) at 111; Defs’ Statement of Undisputed Facts (“DSUF”) at H 2). In particular, the BCP transmission line will connect the Imperial Valley electric substation in Imperial County, California to a new power plant called the La Rosita Power Complex (“LRPC”) under construction just west of Mexicali, Mexico. See DOE-33, 202165-202167, DOE-101, 204344. The connection will be made via another transmission line being constructed in Mexico by Energía de Baja California (“EBC”), a wholly-owned subsidiary of Intergen. See DOE-101 at 204320; DOE-33 at 202167; PSUF at 112. The LRPC is being built by EBC and another wholly-owned subsidiary of Intergen, Energía Azteca X (“EAX”). DOE-33 at 202167; PSUF at 112. The LRPC will house four gas-fired combustion turbines. DOE-101 at 204320. EBC will own one of these turbines and EAX will own the remaining three. Id. Two of the EAX turbines, with a combined output of approximately 500 megawatts (“MW”), will provide power to Mexico, while the third EAX turbine and the single EBC turbine will export a combined, nominal 560 MW of power to the United States. DOE-101 at 204320, 204402, 204404. However, the BCP transmission line will be able to transport power generated by any of the turbines at the LRPC. DOE-101 at 204320 n. 2 (noting that while exported power may in limited circumstances from one of the two turbines designated for Mexican energy production, the total amount of power exported would not rise above a nominal 560 MW). Each of the double circuit lines proposed by BCP would have a capacity of 600 MW. DOE-033 at 202168. The lines are to be constructed in two phases, with the second circuit only strung when business or economic circumstances make possible the expansion of the EBC facility, or to meet the additional transmission needs of the EAX turbines. Id. at 202167-212168. The EBC turbine and the EAX export turbine utilize dry low-NOx (oxides of nitrogen) combustor technology and selective catalytic reduction (“SCR”) technology that reduce NOx emissions to 4 parts per million (“ppm”). DOE-101 at 204402, 204404. Carbon Monoxide (CO) emissions from the EBC turbine and the EAX export turbine would be not be controlled and would emit at 30 ppm. DOE-101, 204404, 204321, 204344. Annual emissions from the EBC turbine and the EAX export turbine would be 282 tons of N02 (nitrogen dioxide), 924 tons of CO, and 410 tons of PM-10 (particulate matter less than 10 microns in size). DOE-101 at 204401. The administrative record does not suggest that the remaining two EAX turbines at the LRPC will be built with emissions control technology for NOx or CO. DOE-101 at 204321, 204344. Accordingly, these turbines will emit at 25 ppm for Nox and 30 ppm for CO. DOE-101, 204321. Annual omissions from these two EAX turbines would be 1,502 tons of N02, 957 tons of CO, and 314 tons of PM-10. DOE-101 at 204401. 2. The Termoelectricctr-US (“T-US”) Permit and Right-of-Way On March 1, 2001, Sempra Energy Resources (SER) filed an application for a Presidential permit to construct and operate a separate transmission line that would facilitate the transmission of electricity across the U.S.-Mexico border. See DOE-35 at 202186-202187. In particular, the SER application sought permission to build a line that would connect the Imperial Valley electric substation to the Termoeléctrica de Mexicali (“TDM”) power plant under construction near Mexicali, Mexico. DOE-35 at 202186-202187. The connection will be made via another transmission line being constructed in Mexico by TDM. DOE-35 at 202187. TDM is a wholly-owned subsidiary of Sempra Energy. DOE-35 at 202188. The TDM plant wouid export 100 percent of its net generating capacity to the United States. DOE-101 at 204344. The TDM facility consists of two gas-fired combustion turbines. DOE-101 at 204320. Although the TDM facility is only permitted by Mexican authorities to generate a nominal 500 MW, DOE-35 at 202188, SER indicated that it intended the possible second circuit of the transmission line to have the potential to export up to another nominal 500 MW. DOE-36 at 202196; DOE-35 at 202188. The TDM facility would be equipped with emission control technology, including dry low-NOx combustor technology, SCR, and oxidizing catalyst systems, to reduce Nox and CO emissions. DOE-101 at 204402. The TDM facility would thus emit 2.5 ppm for NOx and 4.0 ppm for CO. DOE-101 at 204402, 204821. Based on 600 MW of energy output, the TDM facility would annually emit 170 tons of NOx, 165 tons of CO, and 216 tons of PM-10. DOE-101 at 204401. Concentrations of pollutants at the U.S. Mexico border due to emissions from the TDM facility are predicted to increase as follows: NOx (annual) 0.09 |xg/m3; CO (8-hour) 2.16 |rg/m3; PM-10 (hourly) 1.12 Sg/m3; PM-10 (annual) 0.11 |xg/m3. DOE-101 at 204403. When combined with total emissions predicted from the entire LRPC, the concentrations of pollutants at the U.S./Mexico border are expected to rise as follows: N02 (annual) 0.8 p,g/m3; CO (1-hour) 70.0 fjig/m3; CO (8-hour) 30.8 Sg/m3; PM-10 (24 — hour) 4.5 |xg/m3; PM-10 (annual) 0.3 ixg/m3. DOE-101 at 204439. II. Procedural Background After undertaking an environmental assessment of the applications for the Presidential Permits and the BLM rights-of-way, DOE and BLM each issued a Finding of No Significant Impact (“FONSI”) in December 2001. DOE-103; • BLM-182 (FONSI for BCP right-of-way); BLM-183 (FONSI for SER right-of-way). DOE issued Presidential Permits to BCP and SER on December 5, 2001. DOE-104 at 204612; DOE-105 at 204618. BLM granted a right-of-way to BCP that became effective on December 28, 2001, and another right-of-way to SER that became effective on December 31, 2001. BLM-189 at 102333; BLM-186 at 102290. The Presidential Permit and the right-of-way issued to SER were subsequently transferred to T-US, a subsidiary of Sempra Energy. DOE-125S at S24897; BLM-207S at S102612. Plaintiff filed a motion for summary judgment, alleging various violations of the National Environmental Protection Act (“NEPA”) and the Administrative Procedure Act (“APA”) on January 31, 2003. The federal defendants filed a cross-motion for summary judgment and an opposition to plaintiffs motion on March 13, 2003. Amicus curiae briefs were filed by BCP, T-US, and Imperial County and City of El Centro. Plaintiff responded to the BCP and T-US briefs on April 4, 2003, and both plaintiff and the federal defendants replied to the other’s opposition brief. The federal defendants have also moved separately to strike extra-record materials. Finally, plaintiffs moved to strike T-US’s request for judicial notice and supplemental declaration. DISCUSSION III. Preliminary Issues Before reaching the merits of the case, the Court must first determine whether it has jurisdiction and what evidence it can consider. First, the Court will briefly consider whether it has proper jurisdiction. A. . Standing Although defendants do not challenge plaintiffs standing, the Court has an independent duty to assure itself that it has jurisdiction over the case. Plaintiff has submitted several declarations to demonstrate its standing. 1. Legal Standards a. Traditional Standing Because standing is “an essential and unchanging part of the case-or-controversy requirement of Article III,” the Court does not have jurisdiction in its absence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The “irreducible constitutional minimum” of standing contains three elements. Id. First, the plaintiff must have suffered an “injury in fact.” Id. The Supreme Court’s opinions have defined such an injury as “an invasion of a legally protected interest which is (a) concrete and particularized... and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal quotations omitted). Second, the injury must be fairly traceable to the challenged action of the defendants. See id. Third, it must be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561, 112 S.Ct. 2130 (internal quotations omitted). Each of these elements must be supported by the plaintiff with the same manner and degree of evidence required to show any other matter at the present stage of the litigation. Id. With regard to the “imminence” of the injury in fact, the plaintiff must show that the injury is “certainly impending.” Id. at 564 n. 2, 112 S.Ct. 2130 (emphasis in original). The goal is to avoid conferring standing on a party on which no injury would have occurred at all in the absence of judicial action. Id. In the end analysis, the Court warns that standing “is not ‘an ingenious academic exercise in the conceivable.’ ” Id. at 566, 112 S.Ct. 2130 (citing United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 688, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)). The requirement that the injury is particularized means that “[t]he plaintiff must have a personal stake in the outcome.” Id. at 583, 112 S.Ct. 2130. To be concrete, the injury must be more than “abstract.” Id. Rather, plaintiff must demonstrate that it has “sustained or is immediately in danger of sustaining some direct injury as the result of the challenged statute or official conduct.” Id. (internal quotation omitted). b. Procedural Standing In Lujan v. Defenders of Wildlife, the Court recognized that its analysis would differ if it was faced with a case in which “plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e.g.,... the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them).” Id. at 572, 112 S.Ct. 2130. Although the Court rejected the argument that the injury-in-fact requirement is satisfied by “congressional conferral upon all persons of an abstract, self-contained, noninstrumental ‘right’ to have the Executive observe the procedures required by law,” id. (emphasis in original), it also recognized that “procedural rights” are special and should be accorded different treatment under the standing analysis: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency’s failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years. Id. at 572 n. 7, 112 S.Ct. 2130. The Lujan Court explained that the case before it differed from its hypothetical case because the Lujan plaintiffs sought procedural standing for persons who had no concrete interests affected. Id. In terms of the Court’s hypothetical, these would be people who live on the other side of the country from where the proposed dam would be built. Id. In sum, the Court held that an individual can enforce procedural rights “so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.” Id. at 573, 112 S.Ct. 2130. The Ninth Circuit has determined that the Lujan case requires a plaintiff to show two essential elements for procedural standing: “(1) that he or she is a person who has been accorded a procedural right to protect [his or her] concrete interests ... and (2) that the plaintiff has some threatened concrete interest ... that is the ultimate basis of [his or her] standing.” Douglas County v. Babbitt, 48 F.3d 1495, 1500 (9th Cir.1995) (internal citations omitted). Additionally, “plaintiffs must show that their interest falls within the ‘zone of interests’ that the challenged statute is designed to protect.” Id. at 1500-01. The Ninth Circuit has found in several cases that a procedural injury can form the basis for standing. See, e.g. Pacific Northwest Generating Coop. v. Brown, 25 F.3d 1443, 1450 (9th Cir.1994) (plaintiffs with an economic interest in preserving salmon have procedural interest in ensuring that the ESA is followed); Friends of the Earth v. United States Navy, 841 F.2d 927, 931-32 (9th Cir.1988) (residents who live near site of proposed port have procedural standing to sue for Navy’s alleged failure to follow permitting regulations); State of California v. Block, 690 F.2d 753, 776 (9th Cir.1982) (state of California has procedural standing to challenge the adequacy of an EIS for forest service’s land allocation); City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir.1975) (city located near proposed freeway interchange has procedural standing to challenge agency’s failure to prepare an EIS). c. Organizational Standing An association has standing to bring suit on behalf of its members when “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). 2. Application to This Case Plaintiff claims that five of the eight declarations it submitted in conjunction with its motion for summary judgment support plaintiffs standing. (See Declarations of Marie Barrett, Carlos Yruretagoyena Ugalde, Fernando Armando Medina-Robles, Kimberly Collins, and William Powers). All five are members of the plaintiff organization. Four of the five live either in Imperial County, U.S.A., or Mexicali, Mexico, near the transmission lines and power plants at issue. Based on their proximity to the project and the procedural requirement under NEPA to evaluate whether the project will have a significant impact on the environment, it seems clear that at least four of the members submitting declarations have procedural standing to sue in their own right. Furthermore the interest that the plaintiff seeks to protect — the public health and quality of the environment in that region — are germane to the plaintiffs purpose. (See Powers Decl. at 2) (“[Plaintiff organization’s] membership is composed of United States and Mexican citizens who share a concern for the. environmental health of the border region.”). Finally, because the standing to sue is common to at least four of the members who submitted declaration, it is clear that no one member’s participation is required in the lawsuit other than to supply the declaration that confers standing. Accordingly, it appears that plaintiff has satisfactorily demonstrated by a preponderance of the evidence that it has organizational standing to proceed in this suit. B. Extrar-Record Materials As a second preliminary matter, the Court must determine what facts may properly form the basis of its decision. Plaintiffs cause of action arises under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. In general, actions under the APA are based on judicial review of the administrative record on which the agency relied in reaching the decision at issue. See 5 U.S.C. § 706. Defendants complain that plaintiff has filed eight extra-record declarations, each of which postdates the final decision made by defendants in this case. (See generally Defs’ Mem. in support of Motion to Strike). Accordingly, defendants move to strike these declarations. At the same time, Defendant-Intervenors T-US and BCP have submitted extra-record declarations in support of their respective amicus briefs. Finally, amici County of Imperial and City of El Centro have lodged several documents that they believe require judicial notice. The APA directs that “the court shall review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. The Ninth Circuit has interpreted this command in the following way: Generally, judicial review of agency action is limited to review of the administrative record. Friends of the Earth v. Hintz, 800 F.2d 822, 828 (9th Cir.1986). In Florida Power & Light Co. v. Lorion, 470 U.S. 729, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985), the Supreme Court emphasized that when reviewing administrative decisions: “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court. Id. at 743-44, 105 S.Ct. at 1607 (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973)). This standard is applicable to review of agency action under NEPA. Hintz, 800 F.2d at 829. However, certain circumstances may justify expanding review beyond the record or permitting discovery. See, e.g., Public Power Council v. Johnson, 674 F.2d 791, 793 (9th Cir.1982). The district court may inquire outside the administrative record when necessary to explain the agency’s action. Id. at 793-94. When such a failure to explain agency action effectively frustrates judicial review, the court may “obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). The court’s inquiry outside the record is limited to determining whether the agency has considered all relevant factors or has explained its course of conduct or grounds of decision. Hintz, 800 F.2d at 829. The district court may also inquire outside of the administrative record “when it appears the agency has relied on documents or materials not included in the record.” Public Power Council [v. Johnson], 674 F.2d [791] at 794 [9th Cir.1982]. In addition, discovery may be permitted if supplementation of the record is necessary to explain Technical terms or complex subject matter involved in the agency action. Id. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988) as amended by Animal Defense Council v. Hodel, 867 F.2d 1244 (9th Cir.1989); see also Hells Canyon Preservation Council v. Jacoby, 9 F.Supp.2d 1216, 1223 (D.Or.1998). Plaintiff argues that its three scientific declarations fall within these exceptions. (See Pla’s Opp’n to Defs’ Mot. to Strike at 3). First, plaintiff argues that the declarations demonstrate relevant factors (including impacts on air, water, and human health) that DOE did not adequately consider. (Id.). Second, they argue that the declarations help to explain technical terms essential to the case. (Id. at 4). Because it is not the Court’s.job to “resolve disagreements among various scientists as to methodology,” the Court will not consider the declarations to the extent they seek to simply advocate a better or different methodology for assessing environmental impacts already analyzed in a reasonable manner by defendants. See Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir.1985). Neither may post-decisional documents be used to object to or support the federal actions for the first time. See Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.1991); Association of Pacific Fisheries v. EPA, 615 F.2d 794, 811-812 (9th Cir. 1980). However, to the limited extent that these declarations provide information falling within one of the established exceptions to the general rule that the review will be confined to the record, the Court will consider them. See Sierra Club v. Babbitt, 69 F.Supp.2d 1202, 1209 (E.D.Cal. 1999) (finding extra-record declarations permissible and helpful in understanding the factual complexities of the case). If the Court relies on any of these extra-record documents, it will provide a citation to that document and explain the exception under which it considers the document. The Court will treat the extra-record materials submitted by the amici in the same manner. Accordingly, the Court declines to adopt the bright line rule urged by defendants, and denies their motion to strike plaintiffs extra-record declarations. IV. Threshold Question: Are the Power Plants Within the Scope of the NEPA Review? As a threshold matter, the Court must first determine the scope of the environmental review required by NEPA to determine whether the construction of the power plants is within that scope. Plaintiff assumes in its arguments that the actions whose impacts must be analyzed include not only the construction and operation of ■the actual transmission lines, but also the operation of the power plants in Mexico to which the lines will be connected. In fact, all, or at least the vast majority, of the complaints of impacts to air quality, water quality, and human health set forth by plaintiff are actually caused by the power plants. (See generally Pla’s Mem. at 1:21-28). Because of this, amicus BCP argues that if the “action” at issue here is narrowly limited to the construction and operation of the transmission lines, without regard to the generation of the power, and the emissions of the power plants are not “effects” of that action, then plaintiffs complaints are immaterial to the permits at issue. NEPA requires a federal agency to prepare an environmental impact statement (EIS) for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The Council for Environmental Quality (CEQ), which is charged with implementing NEPA, has defined a “major federal action” as including “actions with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18. Similarly, defendant Department of Energy has defined “action” for NEPA purposes as “a project, plan, or policy ... that is subject to DOE’s control and responsibility.” 10 C.F.R. § 1021.104(b). BCP argues that the latter definition necessarily excludes the Mexican power plants from the scope of the action because these plants are outside the regulatory jurisdiction of the United States. (See BCP Brf. at 6). The first key question under the regulatory definitions is whether the plants will be “projects” that are “subject to [Federal] control and responsibility.” 10 C.F.R. § 1021.104(b). Clearly, they are not because they are outside the jurisdiction of the United States. Accordingly, defendants correctly did not include the power plants themselves when defining the scope of the proposed action. DOE-101 at 204328. Nonetheless, the environmental analysis of the actions might still require consideration of the operation of the power plants if such operation constitutes an “adverse environmental effect” of the granting of the permit to construct and operate the transmission lines. 42 U.S.C. § 4332(C)(ii). NEPA’s implementing regulations define “effects” and categorize them as “direct” or “indirect.” 40 C.F.R. § 1508.8(a). “Direct effects” are those “which are caused by the action and occur at the same time and place.” Id. “Indirect effects” are those “which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” Id. Thus, as BCP notes, the question is one of causation. (BCP Brf. at 6). The question of whether the power plants are effects of the proposed action is central to assessing both the legality of the FONSI and to assessing the adequacy of the environmental assessment (EA). First, in deciding whether to prepare an EIS, an agency must consider “significant indirect effects.” Sylvester v. U.S. Army Corps of Engineers, 884 F.2d 394, 400 (9th Cir.1989). Second, the question of the adequacy of the EA’s analysis of the air impacts, water impacts, and alternatives of the proposed actions, depend on whether the plants’ adverse environmental impacts are effects of the proposed transmission lines. The Sylvester court created the following analogy to address the scope of “effects” of a proposed action that must be discussed in environmental analyses: Environmental impacts are in some respects like ripples following the casting of a stone in a pool. The simile is beguiling but useless as a standard. So employed it suggests that the entire pool must be considered each time a substance heavier than a hair lands upon its surface. This is not a practical guide. A better image is that of scattered bits of a broken chain, some segments of which contain numerous links, while others have only one or two. Each segment stands alone, but each link within each segment does not. Id. at 400. Employing this analogy, the Sylvester court held that in order for an agency to be required to consider secondary (indirect) and cumulative impacts (or effects) of an action other than the proposed action under NEPA, the proposed action and the second action must be “two links of a single chain.” Id. In so holding, the Sylvester court collected and analyzed the prior cases discussing the question in the Ninth Circuit. Id. (citing Port of Astoria, Oregon v. Hodel, 595 F.2d 467, 480 (9th Cir.1979) (agency’s EIS had to consider the supply of federal power and the construction of a private magnesium plant that used the power); Thomas v. Peterson, 753 F.2d 754, 761 (9th Cir.1985) (agency’s EIS had to consider both a federal road and the federal timber sales that the road would facilitate); and Colorado River Indian Tribes v. Marsh, 605 F.Supp. 1425, 1433 (C.D.Cal.1985) (agency had to prepare an EIS that considered both the federal action of- stabilizing a river bank and the private housing built as a result)); see also id. at 401 (citing Friends of the Earth v. Hintz, 800 F.2d 822, 832 (9th Cir.1986) (agency considered only filled wetlands and not other, aspects of a harbor facility in deciding not to prepare an EIS); Enos v. Marsh, 769 F.2d 1363, 1371-72 (9th Cir.1985) (agency’s EIS did hot have to consider non-federal shore facilities for a new deep draft harbor); Friends of Earth, Inc. v. Coleman, 518 F.2d 323, 328 (9th Cir.1975) (agency did not have to prepare an EIS for state funded projects in a partially federally funded airport development)). The court concluded' that these cases did not mandate a different result because “[t]he federal and private portions of the projects considered in these cases were joined to each other (links in the same bit of chain) in a way that the golf course [the proposed action under consideration in Sylvester ] and the remainder of the resort complex (a separate segment of chain) are not.” Id. Importantly, the basis for the Sylvester court’s determination of whether two related actions constituted links of a single chain involved determining whether “each [action] could exist without the other.” Id. It was not enough that the actions might be related or that each “might benefit from the other’s presence.” Id. Accordingly, the question in the present case narrows to whether the transmission lines and the power plants at issue would exist in the absence of the other. Somewhat confusingly, the Sylvester court cites two other Ninth Circuit cases in a footnote, dismissing them because they involved “the impact of federal action rather than the scope of federal action.” Id. at 401 n. 3 (citing Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 816 (9th Cir.1987) and City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir.1975)). While it is clear, as the Sylvester court implies, that the scope of the proposed action and the impacts of that action are separate questions under NEPA, this appears confusing only because “scope” may also refer to the variety of impacts that a sufficient EA or EIS must address. It is helpful to differentiate then between the scope of the proposed action and scope of the NEPA review. Thus, in the present case, the proposed action does not include the operation of the Mexican power plants. The question remains, however, whether the operation and emissions of those plants must be included within the scope of the NEPA review because they are effects of the proposed federal action. It seems to the Court that many of the cases cited by Sylvester court involved both the impact (or effects) of a proposed federal action and the scope of the action. While those cases treated the two concepts as coextensive, this Court finds the cases relevant to the present inquiry only to the extent that they discuss the effects of the proposed action. Thus, the two additional cases cited by Sylvester dealing exclusively with the effects of federal action are central to the present analysis. First, in Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 816 -817 (9th Cir.1987), rev’d on other grounds, Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989), the court first emphasized that NEPA does not recognize any distinction between primary and secondary effects when requiring environmental review of the effects. Id. at 816. In discussing how proximate any effects must be to the proposed action to require their inclusion in the NEPA analysis, the Court held: This court would not require the government to speculate on impacts in order to “foresee the unforeseeable”. See City of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir.1975). However, [i]t must be remembered that the basic thrust of an agency’s responsibilities under NEPA is to predict the environmental effects of proposed action before the action is taken and those effects fully known. Reasonable forecasting and speculation is thus implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as “crystal ball inquiry”. Id. at 676 (quoting Scientists’ Institute for Public Information v. A.E.C., 481 F.2d 1079, 1092 (D.C.Cir. 1973)). Thus we find it imperative that the [agency] evaluate the reasonably foreseeable significant effects which would be proximately caused by implementation of the proposed action. Id. at 816-817. Similarly, though perhaps more narrowly, the court in City of Davis v. Coleman, found that effects must be included in the environmental review when the action is an “indispensible prerequisite” or an “essential catalyst” to the effects. 521 F.2d 661, 674 (9th Cir.1975). More recently, the Ninth Circuit reaffirmed that an agency may “limit the scope of its NEPA review to the activities specifically authorized by the federal action where the private and federal portions of the project could exist independently of each other.” Wetlands Action Network v. U.S. Army Corps of Engineers (WAN), 222 F.3d 1105, 1116 (9th Cir.2000). In general that Court instructed that “deciding whether federal and non-federal activity are sufficiently interrelated to constitute a single federal action for NEPA purposes will generally require a careful analysis of all facts and circumstances surrounding the relationship.” Id. (internal quotations omitted). The WAN court faced a situation, like here, where the federal agency did not have independent jurisdiction over the non-federal action that was a potential effect of the proposed action. See id. at 1117. Furthermore, the court found that the non-federal action “certainly could proceed without the [federal action] and... is currently proceeding without the [federal action].” Id. The non-federal action at issue in WAN, as here, was not financed by federal funding, and federal regulations did not control the design of the non-federal action. Id. Finally, the WAN court derived comfort from the fact that the non-federal action had already been subjected to extensive state environmental review. Id. In sum, Ninth Circuit precedent makes clear that effects must' be causally linked to the proposed federal action in order for NEPA to require consideration of those effects in an EA or EIS. In the present case, only BCP puts much weight on the argument that the power plant emissions are not effects of the transmission line project. BCP’s principle argument is that the power transmission lines are not a but-for cause of the LRPC emissions because the LRPC would generate some of its power for the Mexican market without regard to whether the transmission lines are completed, and it could send its export power through the Mexican power grid to the United States via an alternative transmission line. (See BCP Brf. at 9-10). Amicus T-US does not make the same argument, presumably because the TDM plant will only be producing power for export to the United States, and the only planned transmission line connecting that plant is the one requiring the permit under consideration. The federal defendants appear to concede, both in the EA itself and their briefs, that they were required to analyze to some extent the impacts of the power plants, although they argue, correctly, that the power plants are not within the scope of the proposed action. Plaintiff argues that the BCP and T-US permits should not be separately analyzed because the federal defendants opted to analyze the actions together. (See Pla’s Reply at 10, n. 10). Especially given the WAN court’s instruction that the determination of effects is a fact-specific inquiry, the Court finds no reason why it should not consider the permits separately. This is even more important in this case because the record demonstrates that at least part of the LRPC plant is dedicated to providing power exclusively to the Mexican market, while all of the power of the TDM plant will be exported to the United States. Given these different factual circumstances, the Court finds it appropriate to consider the permits separately at the threshold level of analysis. The LRPC plant is divided into three EAX turbines and one EBC turbine. Two of the EAX turbines are designed to produce power exclusively for sale to a Mexican utility, and it is reasonably foreseeable that very little of this power will flow through the BCP transmission line into the United States. DOE-101 at 204320. The EA does acknowledge the possibility that under limited circumstances, the domestic generation turbines may provide power to the BCP line. Id. at 204320, n. 2. The record shows that the third EAX turbine is anticipated to produce power exclusively for export to the United States. Id. at 204320, n. 1. However, the power produced by the EAX export turbine could be transmitted to the United States through an alternative interconnection site. Id. at 204328-29, 204395. Finally, the EBC turbine is configured and licensed only to sell electricity over the BCP line. Id. at 204328-29, 204395, 204321; BCP Brf. at 9. Although BCP cites to an extra-record declaration to support its claim that the two export turbines at the LRPC plant could be reconfigured to provide power for the Mexican market in the absence of the BCP transmission line, the Court finds that these extra-record materials were not before the agencies at the time that they made the challenged decisions and do not fall within any exceptions to the rule that the Court will limit its review to the record. Considering only the information that the federal defendants had before them at the time they made their final decisions, the Court finds that it was reasonably foreseeable that the two export turbines in the LRPC would use the BCP transmission line to export the entirety of their power. Furthermore, given that the BCP line is the only current means evidenced by the record through which the EBC turbine could transmit its power, the Court finds that the BCP line was a but-for cause of the generation of power at the EBC turbine. Because the EBC turbine and the BCP transmission line are two links in the same chain, the emissions resulting from the operation of the EBC turbine are “effects” of the BCP transmission line that must be analyzed under NEPA. For the same reasons, the Court finds that the operation of the TDM plant is an effect of the T-US transmission line. See DOE-101 at 204321 (indicating that the only current means of transmission from the TDM plants are through the TUS line). Conversely, the Court finds that the two turbines in the LRPC dedicated almost exclusively to the generation of power for the Mexican market are not causally linked to the BCP line in a way that makes the BCP line a necessary prerequisite or essential catalyst to their operation. Because the line of causation is too attenuated between these turbines and the federal action permitting the BCP line, Ninth Circuit authority makes clear that the emissions of the non-export turbines were not effects of the BCP line and that the federal defendants were therefore under no NEPA obligation to analyze their emissions as effects of the action. Additionally, because the record makes clear that the EAX export turbine has an alternative to the BCP line to export its power, the BCP line cannot be considered the but-for cause of the EAX export turbine’s operation. Indeed, the EA concludes that the EAX export turbine would be built regardless of whether the BCP line is permitted. DOE-101 at 204328-29, 204395. For this reason, the EAX turbine is also not an effect of the action. Although NEPA does not explicitly limit the federal defendants’ review of impacts to only those required by NEPA (and, indeed, agencies might be commended for erring on the side of precaution and inclusiveness when considering major actions affecting the environment), the Court does not believe that even an inadequate analysis of isolated impacts that are not effects of the proposed action can require the invalidation of an EA. Accordingly, the Court will not consider plaintiffs complaints regarding the EAX turbines at the LRPC except to the extent they relate to the cumulative impact analysis. V. Did the Agencies Act Arbitrarily When They Issued a “Finding of No Significant Impact” (FONSI)? A Standard of Review Summary judgment is properly granted when “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In an administrative review case, like this one, the administrative record provides the relevant facts, and the legality of the agency’s decision based on those facts is a question of law. Accordingly, summary judgment is an appropriate vehicle for resolving a case like the one at bar. See Northwest Motorcycle Assn. v. U.S. Dept. of Ag., 18 F.3d 1468, 1471-72 (9th Cir.1994). Under NEPA, an agency must prepare an EIS for any “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). NEPA’s regulations provide that an agency may prepare an EA to determine whether the proposed action is one that requires a full EIS. 40 C.F.R. § 1501.4(b). The EA must briefly describe the proposal, examine alternatives, consider environmental impacts, and provide a listing of individuals and agencies consulted. 40 C.F.R. § 1508.9. After preparation of the EA, an agency may decide to issue a “finding of no significant impact” (FONSI), which reheves the agency of its obligation to prepare a full EIS. If, however, the EA establishes that the agency’s action may have significant environmental impacts, the agency must prepare an EIS. National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 730 (9th Cir.2001) (internal quotations omitted). An agency’s decision not to prepare an EIS under NEPA is a final administrative decision reviewable under the Administrative Procedure Act (APA). See 5 U.S.C. § 701 et seq. Under the APA, the Court must decide whether the decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir.2002). Under this, standard, courts must “carefully review the record to ensure that agency decisions are founded on a reasoned evaluation of the relevant factors.” Public Citizen v. Department of Transp., 316 F.3d 1002, 1020 (9th Cir.2003) (internal quotations omitted). The Court must be satisfied that the agency took a “hard look” at the potential environmental impacts of the proposed action. Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.1992). Part of this hard look is providing a convincing statement of reasons why potential effects are insignificant, and therefore do not necessitate the preparation of an EIS. See Save the Yaak Committee v. Block, 840 F.2d 714, 717 (9th Cir.1988). If the decision of the agency is “well informed and well considered,” the Court must defer to the agency’s decision. LaFlamme v. FERC, 852 F.2d 389, 398 (9th Cir.1988); see also WAN, 222 F.3d at 1114-1115 (an environmental review under NEPA will only be overturned if the agency committed a clear error in judgment). B. Analysis The parties do not dispute in their briefs that the issuance of the Presidential Permits and the rights-of-way in the present case represent “major federal actions” as defined by the NEPA regulations. Rather, the dispute centers on whether these actions will have “significant” impacts on the environment. NEPA regulations provide guidance on evaluating the significance of an action’s impact. See 40 C.F.R. § 1508.27. Those regulations provide as follows: “Significantly” as used in NEPA requires considerations of both context and intensity: (a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant. (b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity: (1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial. (2) The degree to which the proposed action affects public health or safety. (3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas. (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial. (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks. (6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration. (7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts. (8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources. (9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973. (10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment. 40 C.F.R. § 1508.27. If the agencies’ ac-' tions are environmentally “ ‘significant’ according to any of these criteria,” then they erred in failing to prepare an EIS. Public Citizen v. Department of Transp., 316 F.3d 1002, 1023 (9th Cir.2003) (citing Nat’l Parks, 241 F.3d at 731) (emphasis in original). Í. Public Health Plaintiff argues that despite public comments alerting the agencies to potential impacts on public health as a result of increased air pollution, the EA failed to evaluate these impacts. (See Pla’s Mem. at 11-12). The Ninth Circuit has stated that even a “marginal degradation” of air quality “could easily be said” to be a significant impact on the environment for NEPA purposes. Public Citizen v. Department of Transp., 316 F.3d 1002, 1024 (9th Cir.2003). In Public Citizen, the Court found that an agency’s failure to even consider whether NOx and PM-10 emissions from diesel trucks would impact public health was a violation of NEPA. Id. Defendants respond that they did in fact consider the health impacts of increased emissions. The reasoning upon which they rely is based on the following steps of logic: (1) Because they determined that emissions of NOx, CO, and PM-10 would fall below “significance levels” (SLs) established by the EPA, and (2) because these SLs are “based on protecting human health and welfare,” then (3) the federal defendants at least implicitly analyzed whether the air emissions would harm public health. (See Def s Mem. & Opp’n at 11-12, 34). The EPA sets SLs for criteria pollutants in the context of carrying out its duties under the Clean Air Act. See DOE-101 at 204401-204402. These are the levels below which any particular major source is not deemed to be contributing to violations of the National Ambient Air Quality Standards (“NAAQS”). Id. The Appendix to the EA states that “[i]f measured or predicted concentrations of the criteria pollutants are below the ambient standard, no health effects are expected.” DOE-102 at 204472. This statement contradicts plaintiff’s claim that the EA contained no discussion of the health impacts of the actions whatsoever. (See Pla’s Reply & Opp’n at 7). Moreover, defendants argue that this link between NAAQS and public health impacts distinguishes the present case from Public Citizen. (See Defs’ Mem. & Opp’n at 35, n. 18). Defendants argue that there exists no “marginal degradation” of air quality, as the term is used in Public Citizen, because the EA establishes that emissions would not exceed the SLs. (Id.). Finally, defendants argue that further discussion of the potential health impacts of the actions are discussed in the EA appendix, which they argue should be considered to be part of the EA. (Id. at 35). The EA Appendix specifies that T-US’s application evaluated potential acute, chronic, and cancer health effects resulting from the TDM facility and found them to be “substantially below their relative thresholds of 10 in 1 million, 0.5 and 0.5, respectively.” DOE-102 at 204486. Defendants also argue that modeling data for the LRPC export turbines were analyzed to ensure that they would result in no negative health impacts. Id. at 204469. Defendants argue that these analyses constitute the hard look they were required to take. Although plaintiff argues that an analysis of whether air impacts will exceed EPA SLs cannot be equated with the public health analysis required by NEPA, the Court finds that plaintiffs argument is merely one involving methodology. The Court will not require that the agencies analyze the air impact on public health in a particular way, but rather will only ensure that the agencies’ analysis is well-reasoned. The Court finds that the agencies have met their burden in this case. The logic of their argument is indeed well-reasoned: If ambient air quality standards are designed, as they are, to protect human health, then a finding that the projects do not violate those standards logically indicates that they will not significantly impact public health. 2. Uncertainty Plaintiff argues next that an EIS must be prepared because the effect of the Mexican power plants on the formation of ozone in Imperial County’s airshed are uncertain. “Preparation of an EIS is mandated where uncertainty may be resolved by further collection of data, or where the collection of such data may prevent speculation on potential ... effects. The purpose of an EIS is to obviate the need for speculation by insuring that available data are gathered and analyzed prior to the implementation of the proposed action.” Public Citizen, 316 F.3d at 1024 (internal quotations omitted) (omission in original). In Public Citizen, the court held that an EIS was required to resolve uncertainties where an EA had made an arbitrary assumption about data supporting the agency’s conclusion. See id. at 1026 (FONSI unsupportable because, among other reasons, it made an “an arbitrary assumption about the percentage of newer, ‘cleaner’ Mexican trucks on the roads”). Plaintiff in the present case argues that defendant’s assumption that NOx emissions and ozone production would be linearly related is arbitrary and that therefore ozone modeling should have been conducted. (Pla’s Reply & Opp’n at 14-15). In support of its argument, plaintiff points out that the EA itself states that the process of ozone formation is “complex and is also non-linear (i.e., output is not necessarily proportional to input.”). DOE-101 at 204407. On the same page of the EA, the agencies state that ozone in Imperial County, like other rural areas, “does generally tend to be NOx-limited (i.e., adding more NOx increases [ozone]).” Id. Defendants argue that they have acted conservatively in assuming that ozone production would be proportional to NOx emissions. (See Defs’ Reply at 9). First, they argue that under some circumstances, increased NOx emissions can lead to a decrease in ozone. (Id.). Second, they argue that even if they took the counter-assumption that ozone was VOC-limited, then additional NOx emissions would have little to no effect on ozone production. (Id.). Furthermore, defendant argues that to the extent plaintiff demands the use of ozone modeling to assess impacts, plaintiff merely disagrees with the method chosen by DOE. (See Defs’ Mem. & Opp’n at 29). The Court need not resolve disagreements among scientists as to methodology or to decide whether the method employed by an agency in its analysis is the best available. See Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir.1985). Instead, the Court’s task “is simply to ensure that the procedure followed by the [agencies] resulted in a reasoned analysis of the evidence before it, and that the Service made the evidence available to all concerned.” Id. Here, defendants present a reasoned analysis of the impacts on ozone. They provide a logical argument that the presence of NOx and ozone will be closely and positively correlated. DOE-101 at 204407. They then analyzed the contributions of all turbines at issue to the concentration of NOx at the U.S. border and reasonably extrapolated from this the impact on ozone. Id. at 204407-08. The criticism leveled by plaintiff is not at the amount of data collected to determine NOx levels at the border, but rather at the methodology employed to estimate ozone impacts. NEPA does not provide the Court with authority, however, to disagree with the agencies’ specialized knowledge and determination that the particular methodology urged by plaintiffs would be infeasible and inaccurate. See DOE-101 at 204408 (describing the limited utility of ozone modeling when applied to the projects at issue). Accordingly, the Court does not find that the agencies acted arbitrarily in issuing the FONSIs because of uncertainty. 3. Impact on the Saltón Sea, an Ecologically Critical Area Although the draft EA contained no analysis of the impacts of the action on the Saltón Sea, in response to public comments the agencies analyzed the impacts in the final EA and the FONSI. See DOE-101 at 204446, 204431-204432; DOE-103 at 204605. The final EA determined that the combined impact of the LRPC and TDM facilities will reduce water flow into the Saltón Sea by 0.79 percent and increase the salinity of the Saltón Sea by 0.142 percent. DOE-101 at 204431-32. At the same time, the final EA implies that the operation of the plants will reduce the level of biological contaminants in the New River (which ultimately flows into the Salton Sea). Id. at 204432. The FONSI concludes that the negative impacts are “minimal and below the threshold of detection of most measuring instruments.” DOE-103 at 204605. Plaintiff argues that the agencies’ conclusion is conclusory, not supported by data or analysis, and is due no deference. (See Pla’s Mem. at 13). In support of its argument, plaintiff points to a document in the record stating that the Saltón Sea is already a damaged resource because of too much salinity and that recovery efforts are underway to reduce the level of salinity. DOE-25 at 200943-949. The record also links efforts to control salinity in the Salton Sea to the survival of the region’s biodiversity. See id. at 200959. Given this evidence of potential impact, plaintiff challenges the agencies’ conclusion that an increase in the salinity of the Saltón Sea would be insignificant merely because it might be too small to measure. Defendants respond that they have provided adequate support for their conclusion that the impact will be insignificant because the estimated decrease to inflow and increase in salinity are within the natural range of variability of the Saltón Sea and because the operation of the power plants will reduce biological and chemical contaminants in the water. See DOE-101 at 204432; (Defs’ Mem. & Opp’n at 17 (citing DOE-25 at 201228)). Furthermore, defendants point to the fact that the construction of evaporation ponds in the effort to restore the Saltón Sea to a less degraded state will evaporate more water than the TDM and LRPC facilities will use on an annual basis. (See Defs’ Mem. & Opp’n at 17 (citing DOE-25 at 200947, 200949)). Therefore, defendants argue that the proposed actions are consistent with the restoration effort. (Id.). The Court agrees with plaintiff that the agencies’ determination that the actions will not significantly impact the Saltón Sea are arbitrary and capricious. First, while decreases in water flow and increases in salinity in the Sea may be “immeasurable,” as the EA itself demonstrates, they are not incalculable. In fact, the record makes clear that the actions will increase the salinity of the Sea, that the Sea is under threat from increasing salinity already, and that extensive restoration efforts are underway to reduce the current salinity of the Sea. Given this backdrop, the Court finds it unconvincing to say that merely because measuring instruments may not be able to detect an increase in salinity that is bound to occur makes that increase insignificant. The significance of an impact under NEPA has less to do with its measurability and everything to do with the context of the impact. Here, the impacts would affect an “ecologically critical area.” See 40 C.F.R. § 1508.27(b)(3). It is clear from the record that this resource is currently threatened in a way that will only be exacerbated if the proposed actions are undertaken. To state simply, as the agencies have done, that these known impacts will be hard to measure, that they are within a range of natural variability, or that an unrelated restoration effort will evaporate even more water in its effort to decrease salinity in the Sea, is not enough to demonstrate that the impacts will be insignificant. Because the agencies’ analysis is not well-reasoned or convincing, the Court finds that they have failed to take the hard look at the impacts of the actions on the Saltón Sea required of them under NEPA. k. Controversial Nature of the Impacts Plaintiff next argues that the controversy surrounding the potential impacts mandated the preparation of an EIS. (See Pla’s Mem. at 14-15). “ ‘Controversy’ sufficient to require preparation of an EIS occurs “when substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor, or there is a substantial dispute [about] the size, nature, or effect of the major Federal action.’” Public Citizen, 316 F.3d 1002, 1027 (citing Nat’l Parks, 241 F.3d at 736). The evidence establishing such a controversy must be brought to the agency’s attention before it completes its deliberations on the proposed action. Id. The Public Citizen court set out a two-step test for determining the existence of a controversy. First’ “[plaintiffs] must show that there was a ‘substantial dispute’ about [an agency’s] actions and that this dispute raised ‘substantial questions’ about their validity.” Id. If plaintiff makes this showing, “the burden then shifts to [the agency] to provide a ‘convincing’ explanation why no controversy exists.” Id. (citing Nat’l Parks, 241 F.3d at 736). Public Citizen held that an “outpouring of public protest” constituted a substantial dispute where 85 percent and 90 percent of public comments opposed the proposed action. See 316 F.3d at 1027. Where those comments had merit and the agency “failed to adequately account for its failure to act on them,” the court held that the action was “controversial” and required preparation of an EIS. Id. In the present case, DOE received twelve comment letters before the close of the public comment period, and an additional 400 comments by e-mail after the close of the period. DOE-103 at 204601-204602. Plaintiff cites to concerns raised in all but four of these comment letters concerning the water and air impacts of the power plants. See DOE-103 at 204602 (e-mail comment letters raised air and water impacts); DOE-101 at 204442-204443; DOE-72 at 203697, 203699 (air impacts); DOE-79 at 203713-714 (air impacts); DOE-80 at 203717-203719 (air and water impacts); DOE-85 at 20