1. Petitioners challenge Federal Respondents’ approval of an enormous, environmentally destructive transmission line project—known as the “R-Project”—in the Nebraska Sand Hills, an area that, as recently described by the Nebraska Legislature, “provide[s] an irreplaceable habitat for millions of migratory birds and other wildlife every year and serve[s] as the home to numerous ranchers and farmers,” as well as to “priceless” historic and archeological artifacts. Notwithstanding extensive adverse impacts on this unique and fragile ecosystem and historic region, Respondent U.S. Fish and Wildlife Service (“FWS” or “Service”) has issued a permit to the Nebraska Public Power District (“NPPD”) to “take” the American Burying Beetle (“ABB”), a species listed as “endangered” under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544. However, this Incidental Take Permit (“ITP”) and accompanying Habitat Conservation Plan (“HCP”)—without which the project could not lawfully proceed—illegally excludes coverage of (and hence protection for) the Whooping Crane, a highly endangered species. According to the Service’s own expert biologists, as well as outside experts on the species, Whooping Cranes are at extremely high risk of being killed, injured, and otherwise adversely affected by the transmission line. However, the Service’s Regional Director—based in Colorado—overruled the agency’s biologists (and others with species-specific expertise), deciding instead that an ITP should be issued without addressing the Whooping Crane as a covered species. This decision violates the ESA and is otherwise arbitrary, capricious, and contrary to law, in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2).
2. In addition to failing to properly account for the direct impact of the project on Whooping Cranes, Respondents also violated the ESA as well as the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4347, and Section 106 of the National Historic Preservation Act (“NHPA”), 54 U.S.C. § 306108, by failing to meaningfully address the project’s indirect effects in connection with hundreds of industrial wind turbines that will result from the project and that will have adverse impacts on Whooping Cranes, other ESA-listed species, many other migratory birds, ABBs, historic and cultural resources, wetlands, and other important natural resources.
3. Respondents’ violations of the ESA, NEPA, and NHPA are particularly egregious because there are reasonable alternatives to the R-Project that would have far less dire impacts on the exceptional environmental, historic, and cultural values of the Sand Hills. Yet Respondents, under pressure from NPPD, have refused to engage in a meaningful analysis and comparison of such alternatives, instead deferring to NPPD’s unsubstantiated assertion that any option other than NPPD’s preferred approach and route would be impracticable. This is still another reason why Respondents’ decision violates the ESA, NEPA, and the NHPA, and is arbitrary and capricious in violation of the APA. In view of these violations, the Court should set aside the ITP and remand the matter to Respondents for further deliberation.