08.30.2016
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Updates
The U.S. Court of Appeals for District of Columbia Circuit recently held that the U.S. Fish and Wildlife Service violated the National Environmental Policy Act by approving an Ohio wind energy project without looking at all reasonable alternatives for reducing deaths to the endangered Indiana bat. See Union Neighbors United Inc. v. Jewell, No. 15-5147 (D.C. Cir. Aug. 5, 2016). However, the FWS prevailed on a separate ESA claim, in which the court held that the FWS’s interpretation of the ESA was entitled to deference.
Buckeye Wind Project
The endangered Indiana bat is a mouse-eared bat with habitats in the Eastern and Midwestern United States, including Ohio. Although wind farms pose a potential threat to bats generally—either through collisions with the turbines or decompression sickness caused by pressure changes around the turbines—there had been only five known Indiana bat deaths associated with wind farms as of April 2013.
Buckeye Wind LLC sought to build and operate a commercial wind energy facility in Champaign County, Ohio. The proposed project would include up to 100 wind turbines, for a total generating capacity of approximately 250 MW. Buckeye began consulting with the FWS, which worked with Buckeye to draft a Habitat Conservation Plan to address the impacts of Buckeye’s proposed project.
The FWS issued Buckeye an incidental take permit subject to the terms of the HCP, which proposed numerous steps to reduce impacts on the Indiana bat and its habitat. Among other measures, the HCP included operational restrictions in which Buckeye committed to both “turbine feathering” and increased “cut-in speeds.” Turbine feathering is a reduction in the blade angle to the wind to slow or stop the turbine from spinning until a particular cut-in speed is reached. A cut-in speed is the wind speed at which the rotors begin rotating and producing power. The HCP varied the cut-in speeds up to 6.0 meters per second (m/s) based on the location of the turbine, the season and the time of day—resulting in a 2.5% reduction in clean energy production and $980,000 in lost annual revenues (totaling $24.5 million in lost revenues over the permit’s term). The HCP estimated that without any of the operational restrictions, approximately 6.9 to 25.4 bats would be killed per year. With the operational restrictions, an estimated 5.2 bats would be killed per year, with no more than 26 bats in a 5-year period. The FWS determined that this level of take would not have significant consequences for the Indiana bat.
D.C. Circuit Finds FWS’s NEPA Review Was Insufficient
Union Neighbors United Inc. filed a complaint seeking declaratory and injunctive relief, alleging that the issuance of the incidental take permit was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law under NEPA and the Endangered Species Act.
Union Neighbors claimed the FWS did not satisfy NEPA’s requirement to consider a reasonable range of alternatives. Under NEPA, the discussion of alternatives must rigorously explore and objectively evaluate all reasonable alternatives. Union Neighbors claimed the FWS failed to include among the alternatives an economically viable plan that would have taken fewer Indiana bats than Buckeye’s compliance with the HCP.
During scoping, the FWS considered six alternatives to Buckeye’s proposal, and three of these were analyzed in depth: (1) a no action alternatives; (2) a maximally restricted operations alternative (Max Alternative); and (3) a minimally restricted operations alternative (Minimal Alternative).
- Under the no action alternative, the FWS would not issue the permit, Buckeye would not construct the project and no bats would be taken.
- The Max Alternative would shut down all turbines at night when the Indiana bats are active, thus eliminating the take of any bats. However, this would result in a 22.7% reduction in clean energy production and $8.65 million in lost annual revenues (equating to $216.5 million in lost revenues over the permit’s term).
- The Minimal Alternative would feather all turbines to a cut-in speed of 5.0 m/s during the fall migration period during hours when the bats were most active, resulting in a higher estimated take of 12 bats per year.
In its comments on the Final EIS, Union Neighbors asked the FWS to consider a cut-in speed of 6.5 m/s as another alternative to Buckeye’s proposal. The FWS responded that, because of the “infinite combinations” of cut-in speeds higher than the proposed action that could reduce bat mortality further, the Max Alternative was a reasonable alternative to consider in lieu of Union Neighbors’ proposed speed.
The D.C. Circuit disagreed: “Viewing the range of alternatives through the lens of its stated goals, the [FWS] failed to consider a reasonable range of alternatives because it did not consider any reasonable alternative that would be economically feasible while taking fewer bats than Buckeye’s proposal.”
As the court explained, the only alternative the FWS considered that would take fewer bats than Buckeye’s proposal was the Max Alternative. All parties conceded, however, that the Max Alternative was not an economically feasible alternative. The court pointed out that the FWS knew the Max Alternative was not economically viable, and it was aware that other, more viable measures would take fewer bats than Buckeye’s proposal—especially since Union Neighbors had repeatedly suggested using a cut-in speed of higher than 6.0 m/s. Nevertheless, the FWS failed to consider any higher cut-in speed in either the Draft or Final EIS. The court seemed particularly swayed by the fact that the FWS’s own responses to Union Neighbors’ comments reflected the potential for a higher cut-in speed to more effectively align with its stated goals.
The FWS argued that it did not need to consider another alternative because there would be an “infinite array of potential protective measures that could be varied depending on habitat, feathering, cut-in speed and season, among many other factors.” The court rejected this argument, explaining that the FWS “would not need to examine an ‘infinite array,’ nor even examine Union Neighbors’ proposed 6.5 m/s speed. An analysis of a realistic mid-range alternative with a cut-in speed that would take materially fewer bats than Buckeye’s proposal while allowing the project to go forward would suffice.”
The court therefore determined that the FWS had violated NEPA by failing to consider a reasonable range of alternatives, because it did not consider any reasonable alternative that would have taken fewer Indiana bats than Buckeye’s plan. The court reversed the district court on Union Neighbors’ NEPA claims.
FWS Complied With Its ESA Obligations
Union Neighbors also claimed that the FWS had failed to comply with Section 10(a)(2)(B) of the ESA, which requires a finding that the applicant for an incidental take permit “will, to the maximum extent practically, minimize and mitigate the impacts of such taking.” 16 U.S.C. § 1539(a)(2)(B)(ii).
The FWS made an official finding that Buckeye minimized and mitigated the impact on the Indiana bat to the maximum extent practicable. After considering the text, legislative history and prior interpretations of the ESA, the court was persuaded that the “minimize and mitigate” language in section 10(a)(2)(B)(ii) refers to populations of the species as a whole, rather than the discrete number of individual members of the species that are taken. Looking at the interplay between the phrases “to the maximum extent practicable” and “minimize and mitigate such impacts,” the court also determined that if the minimization and mitigation measures fully offset the take, the ESA requirements have been met, and there is no need to do more to satisfy the ESA’s “maximum extent practicable” test.
The court therefore held that the FWS’s interpretations of the ESA were persuasive and entitled to deference. In light of its interpretation, the FWS complied with its ESA obligations.
Conclusion
This decision signals the importance of analyzing realistic alternatives under NEPA, and it cautions against setting up alternatives in a way intended to lead to the desired result. On the ESA ruling, the court’s precedent regarding the “minimize and mitigate” requirement is also significant.
© 2016 Perkins Coie LLP
