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Windfarm industry suffers setback as court rejects 30 year Eagle permit rule  

Credit:  Davis Wright Tremaine LLP - Gerald F. George | August 13 2015 | www.lexology.com ~~

On August 11, 2015, a district court in Silicon Valley remanded a U.S. Fish and Wildlife Service (FWS) rule issued in 2013 that had extended the potential term of incidental take permits under the Bald and Golden Eagle Protection Act (Eagle Protection Act) from 5 years to 30 years. Bird protection groups challenged FWS issuance of the rule extending the potential permit length without first conducting an environmental assessment, which the court held was fatal to the action’s validity. The extension had been promulgated by FWS to assist wind power companies in obtaining financing of facilities that typically were expected to operate for 20-30 years.

The Eagle Protection Act provides bald and golden eagles with protections equivalent to the Endangered Species Act (ESA). In 2009, the FWS initiated an incidental take permit program under the Act, governing activities that were not intended to, but might result in, eagle take. In connection with that action, the FWS had conducted an environmental assessment (EA) pursuant to the National Environmental Protection Act (NEPA), and determined that the risk to eagles from the program would not have significant impacts. However, at that time, as the agency noted, windfarms were not a significant factor in eagle mortality. Based on the EA, the agency established a maximum duration for permits of 5 years, observing the significant potential for change in the environmental impacts over a longer period.

Subsequently, the wind power industry has markedly expanded in the US, and the FWS has developed and issued guidance documents for the avoidance of bird mortality by wind facilities. As reported here, in 2013, to accommodate requests from the industry, FWS issued a rule extending the potential duration of permits from 5 years to 30 years, without conducting either an EA or issuing an Environmental Impact Statement. It asserted that no EA or EIS was required because the rule fell within a categorical exemption, constituting simply an administrative change, and/or one whose impacts “did not lend themselves to meaningful analysis.” The American Bird Conservancy then filed its suit challenging the rule, alleging that the failure to complete an EIS was a violation of NEPA, and that the agency had also ignored its consultation obligations in violation of the ESA.

The district court denied the plaintiffs’ motion for summary judgment under the ESA, but granted summary judgment on its motion under NEPA. The court held that FWS had simply asserted its positions regarding the application of categorical exemption under NEPA and the rule’s potential impact on eagles, and failed to provide any adequate analysis in support of any of its positions. Among its findings was that the rule, which would have obvious environmental impacts on eagles, was not within the terms of either of the categorical exceptions to environmental review cited by the FWS, and even if it were, the significant environmental impacts of the rule made the exceptions inapplicable. The court relied heavily on documents in the administrative record from the agency’s own staff, including statements by the author of the rule calling the need for an EIS a “no-brainer” and stating that “real, significant, and cumulative biological impacts will result if the proposed regulatory changes are implemented.”

The rule will now be remanded to the agency, demonstrating the prescience of the FWS National Raptor Coordinator who, in an email quoted by the court, predicted in 2012 that the agency would “spend the next two years in court” if it went forward with the rule.

The immediate effect of the court’s ruling is limited. While reportedly some operators have been in discussions with FWS about 30 year permits, none have been issued. And at the time the plaintiffs announced their suit in June 2014, FWS also announced that it was initiating a full review of its permit program. Accordingly, the delay for the wind industry in obtaining longer permits may not be extended much beyond what would have otherwise occurred. However, the court’s opinion well illustrates the dangers of ignoring the advice of your internal staff, not least of which is the potential for embarrassment in subsequent litigation.

Source:  Davis Wright Tremaine LLP - Gerald F. George | August 13 2015 | www.lexology.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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