The Fish and Wildlife Service illegally skirted the requirements of the National Environmental Policy Act when it issued a rule that would allow wind energy facilities to obtain permits covering the take of bald and golden eagle permits for 30 years, a federal judge ruled Tuesday (Shearwater v. Ashe, 14-2830-LHK, Cal. N.D.).
Less than two years after its final rule was published, U.S. District Judge Lucy Koh found that FWS ignored its own experts when it decided it could rely on a previously completed Environmental Assessment to sextuple the length of permits.
Update 8/12/15: FWS has not issued any 30-year permits as yet. About a dozen companies have applied, but NEPA compliance with programmatic permits is required, so approval takes time. Industry may be waiting for FWS, which is reviewing its permit regulations, to clear up any uncertainties in the regulatory picture.
Among the reasons for FWS to take a closer look at the extended permit term, said Koh:
- "There is no serious dispute that a sixfold increase in the maximum duration of programmatic eagle take permits will have the effect of reducing public participation in permitting decisions"
- "At the very least, there is substantial evidence in the record indicating that the Final 30-Year Rule’s increase in the maximum duration for programmatic take permits may have 'highly controversial environmental effects' on bald and golden eagles."
- "Under the new thirty-year regime, ... the burden shifts to FWS to determine every five years whether any changes to the permit are necessary."
"At bottom, FWS issued the proposed 30-Year Rule '[b]ecause industry has indicated that it desires a longer permit,' ” Kh said, quoting the proposal.
"While promoting renewable energy projects may well 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,' ” Koh said, quoting Western Watersheds Project v. Kraayenbrink (9th Cir. 2011), 632 F.3d at 492.
FWS, she said, "has not adequately explained why the environmental effects of the final 30-year rule are 'too broad, speculative, or conjectural to lend themselves to meaningful analysis.' In fact, FWS, as far as the Court can tell, did not offer any explanation in the final 30-year rule itself beyond the assertion that the rule 'will be broadly implemented.' "
The judge also ruled against the plaintiffs on their claim that FWS also should have consulted under Section 7 of the Endangered Species Act. She said there was not enough in the record to "provide the Court with a basis for setting aside as arbitrary and capricious FWS’s conclusion that the Final 30-Year Rule 'will not affect endangered or threatened species or designated critical habitat.' "
FWS Director Dan Ashe decided against further NEPA analysis in a meeting with FWS staff in October 2012, 14 months before the final rule was published. Recounted Koh:
Prior to that meeting, FWS had drafted a memo to the Director advising that the agency “prepare an environmental impact statement” before increasing the maximum duration of programmatic eagle take permits from five to thirty years, and that preparing an EIS “would result in a significantly improved, legally defensible regulation.” At the meeting itself, the staff’s “[b]ottomline” recommendation to the Director was to “shelve the tenure rule and do an EIS.” The Director disagreed. Finding the Proposed 30-Year Rule “administrative in nature,” and believing it was “[u]nlikely we’ll be sued by NGOs,” the Director instructed the staff to “[g]o ahead with finalizing the tenure rule.” The final outcome of the meeting pursuant to the Director was: “Don’t do more NEPA. Don’t do an EA, they will only want an EIS.”
The final rule was published Dec. 9, 2013. The lawsuit challenging it was filed June 19, 2014, and amended Sept. 25, 2014. Only four days after the complaint was filed, FWS announced it would conduct a scoping process to determine whether more NEPA analysis was required. (Regulatory docket)
Plaintiffs are Debra Shearwater, an American Bird Conservancy member who owns and operates a private birdwatching company; Dr. Carolyn Crockett, Michael Dee, Robert M. Ferris, executive director of Cascadia Wildlands, and American Bird Conservancy. (Initial complaint with descriptions of plaintiffs.)
American College of Environmental Lawyers coverage (Aug. 7, 2014)
FWS plans NEPA review of permits (NEPA/BGEPA: Fish and Wildlife Service May Overhaul Rule Permitting Incidental Take of Eagles, Andrew Bell and Svend Brandt-Erichsen, Marten Law, July 1, 2014)