08.18.2015

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Updates

On August 11, 2015, the U.S. District Court for the Northern District of California struck down the U.S. Fish and Wildlife Service’s so-called “30-Year Rule,” which had extended from 5 years to 30 years the duration of programmatic eagle take permits under the Bald and Golden Eagle Protection Act (the “Act”). The express purpose of the 30-Year Rule was to facilitate the development of renewable wind energy, since renewable developers had voiced a need for longer-term permits to provide more certainty for project financing.

The Fish and Wildlife Service (FWS) issued the 30-Year Rule without preparing either an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA); instead, the FWS determined that the 30-Year Rule was categorically exempt. In overturning the rule, the court found that the FWS had not shown an adequate basis in the administrative record for its decision not to prepare an EIS or EA and therefore failed to comply with NEPA’s procedural requirements.

The court’s decision is available here.

Background

The Act imposes criminal and civil penalties against anyone who “takes” bald or golden eagles without a permit. “Take” is defined broadly to include “wound, kill, capture, trap, collect, molest or disturb.” 

Regulations allow the FWS to issue permits for the incidental take of eagles. In 2009, the FWS implemented the “5-Year Rule,” which authorized incidental take permits under the Act, with a maximum duration of five years. At the end of the five-year period, the applicant could submit a request for renewal, allowing the FWS to reevaluate the permit conditions in a new decision. Because permit renewal decisions are affirmative agency actions triggering procedural obligations under NEPA, the 5-Year Rule allowed for public access to and involvement in agency decision-making at least every five years. The FWS analyzed the environmental effects of the 5-Year Rule in an extensive EA that was published in April 2009. 

Soon after the 5-Year Rule was issued, the development of wind power and renewable energy substantially increased. To facilitate wind energy development, the FWS proposed a new “30-Year Rule” in 2012 to extend the maximum term for programmatic permits to 30 years. The FWS determined that the 30-Year Rule was categorically excluded from NEPA and consequently did not prepare an EIS or an EA in adopting it. The FWS relied on a two-part categorical exclusion from Department of Interior regulations, contending that (1) the rule is administrative or financial in nature and (2) the rule’s “environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively, or case-by-case.”

The 30-Year Rule went into effect in January 2014 and was then challenged in federal court.

The Court’s Decision

The plaintiffs in the case sought to set aside the 30-Year Rule on the grounds that the FWS, in adopting the rule, failed to comply with NEPA’s requirements to conduct an environmental review and with the consultation requirements of the Endangered Species Act (ESA). The court ruled that the FWS had violated NEPA. It therefore struck down the 30-Year Rule and remanded the matter to the FWS for further consideration. The court determined, however, that the plaintiffs had not shown a violation of ESA’s consultation requirements.

The court found that the administrative record did not contain sufficient evidence to support the use by the FWS of a categorical exclusion from NEPA, and it suggested that the FWS’s decision to increase the maximum duration for programmatic eagle take permits to 30 years was not merely administrative in nature.  

The court expressed concern about decreased public participation, since “a sixfold increase in the maximum duration of programmatic eagle take permits will have the effect of reducing public participation in permitting decisions.” Over the lifespan of a 30-year permit, a project might be subject to NEPA’s public participation requirements only once, as compared with six times under a five-year permit. The court noted that another substantive change created by the 30-Year Rule was that it shifted the burden from the permittee to the FWS, since the new rule required the FWS to determine every five years whether any changes to the permit were necessary.

In reaching its decision, the court repeatedly referenced what was apparently internal strife at the FWS regarding the rule. In particular, the court quoted the program manager for the FWS who was responsible for drafting the proposed 30-Year Rule. She had recommended that an EIS was needed and said that it was a “no-brainer that [FWS] needed to do a NEPA analysis.” The court noted that other agency personnel likewise recognized the risks of increasing the maximum duration of programmatic eagle take permits from 5 to 30 years absent further NEPA review.

The court concluded that while promoting renewable energy projects may be a “worthy goal, it is no substitute for the [agency’s] obligations to comply with NEPA and to conduct a studied review and response to concerns about the environmental implications of major agency action.”

In another proceeding regarding avian impacts, the FWS recently issued a Notice of Intent to prepare a programmatic environmental impact statement evaluating the potential impacts of a proposal to authorize incidental take of migratory birds under the Migratory Bird Treaty Act. For more information on that proceeding, which will likewise be important to those interested in renewable energy and other development activities, please see our update here.

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