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Union Neighbors United, Inc. v. Jewell

The attached appeal made by Union Neighbors United Inc. challenges the prior decision to grant an incidental take permit to Buckeye Wind LLC, enabling its wind project in Ohio to pose a threat to the endangered Indiana bat population and its habitat. Union Neighbors claims that the US Fish and Wildlife Service failed to comply with NEPA and ESA guidelines, thereby wrongly issuing the permit. The appellate court agrees that the Service did not comply with NEPA guidelines as it failed to consider a reasonable range of alternatives that would lessen the take of bats in the area, however it upheld the prior decision that the Service adequately complied with the ESA by ensuring that Buckeye Wind took necessary measures to minimize and mitigate the impact on the Indiana bat population.

A. Viewing the range of alternatives through the lens of its stated goals, the Service 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. Buckeye’s proposal would take 5.2 bats per year. The only alternative the Service considered that would take fewer bats was the Max Alternative. According to the Federal Appellees, the value of the Max Alternative was in the fact that it “eliminat[ed] Indiana bat mortality.” Fed. Appellees Br. at 30. But the Federal Appellees concede that the Max Alternative is not an economically feasible alternative. See id. at 33 (noting higher costs and lower energy production with the Max Alternative). The Service knew, at a minimum, that Buckeye claimed a full nighttime option was not economically viable, and it was aware of other, more viable measures that would still take fewer bats than Buckeye’s proposal—Union Neighbors repeatedly suggested using a cut-in speed higher than 6.0 m/s. Yet the Service failed to consider any higher cut-in speed in either the Draft or Final EIS. Because the Service in that context failed to consider any economically feasible alternative that would take fewer Indiana bats than Buckeye’s proposal, it failed to consider a reasonable range of alternatives...

Accordingly, because the Service in these circumstances did not consider any other reasonable alternative that would have taken fewer Indiana bats than Buckeye’s plan, it failed to consider a reasonable range of alternatives and violated its obligations under NEPA. As a result, the Service’s issuance of the ITP was arbitrary and capricious, and we reverse the District Court on Union Neighbors’ NEPA claims.

B. Finally, the Service’s responses to comments provide the clearest picture about how the Service interprets the ESA’s requirement that it find minimization and mitigation to the maximum extent practicable. The Service described its findings, noting that the cut-in speeds and feathering led the Service to determine that Buckeye “has minimized the quantity of take.” J.A. 1051. Because the quantity of take would have “insignificant impacts on the subpopulations to which the taken individuals belong[ed],” the Service found that Buckeye “minimized the impact of the taking to the maximum extent practicable.” J.A. 1052. Furthermore, Buckeye’s mitigation measures would “contribute toward recovery of the species,” meaning Buckeye “mitigated the impact of the taking to the maximum extent practicable.” Id. After quoting the Handbook, the Service explained that “an assessment of economic feasibility can be considered in part of the assessment of the ‘maximum that can be practically implemented by the Applicant,’ particularly if the mitigation does not fully offset the impact of the taking.” J.A. 1053. In this instance, “because the minimization and mitigation fully offset the impact of the taking,” the Service found “it [was] not necessary to determine if the plan [was] the ‘maximum that can be practically implemented by’” Buckeye. Id. In other words, if combined minimization and mitigation fully offset the take, it does not matter whether Buckeye could do more; Buckeye has already satisfied what is required under the ESA. Accordingly, the Service’s ESA findings were not arbitrary or capricious.

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Buckeye Wind Cutin Speed 15 5147 1628815

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Source: https://www.cadc.uscourts.g...

AUG 5 2016
http://www.windaction.org/posts/50369-union-neighbors-united-inc-v-jewell
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