On August 11, 2015, a federal district court judge in the United States District Court for the Northern District of California1 vacated the United States Fish and Wildlife Service's (FWS) rule authorizing 30-year take permits under the Bald and Golden Eagle Protection Act (BGEPA). The court held that the FWS violated the National Environmental Policy Act (NEPA) by relying on a categorical exclusion rather than conducting a fuller NEPA review. The court's decision may create uncertainty for wind developers who will, at least in the short-term, only be able to apply for and obtain 5-year take permits under the BGEPA. On October 9, 2015, the FWS filed a notice of intent to appeal the Ninth Circuit's decision.
Background: The Bald and Golden Eagle Protection Act prohibits the taking of bald and golden eagles. In 2009, the FWS promulgated a rule that authorized incidental take of bald and golden eagles, i.e., take that is "associated with, but not the purpose of, an activity."2 The 2009 rule authorized a 5-year term for programmatic incidental take permits. Programmatic take is take that is "recurring" and that "occurs over the long term."3 After the 2009 rule was issued there was an increase in wind energy projects, which, in 2012, led the FWS to propose a new rule extending the term of programmatic incidental take permits to 30 years. The FWS adopted the rule extending the term of incidental take permits in 2013.4 The purpose of the 30-Year Rule was to "facilitate the development of renewable energy and other projects that are designed to be in operation for many decades and to provide more certainty to project proponents and their funding sources, while continuing to protect eagles consistent with statutory mandates."5
FWS concluded that the change in term from 5 years to 30 years was categorically excluded from full NEPA review because the change in the rule was "strictly administrative," the impacts from the change in term were too broad or speculative to lend themselves to meaningful review, and no extraordinary circumstances existed requiring additional NEPA analysis.6 FWS' determination to not conduct a NEPA analysis was met with opposition from other federal agencies, conservation and wildlife protection groups, and Indian tribes, who collectively formed the basis for the judicial challenge to the 2013 rule.7
Standing to Challenge Rule: The Federal Defendants argued that the Plaintiffs lacked standing to challenge the rule because the "Plaintiffs merely speculate that the Final 30-Year Rule might encourage development of wind projects at as-yet-unknown locations within large expanses of eagle habitat that they claim they use."8 The court rejected this argument based on declarations the Plaintiffs submitted demonstrating they had certain plans to visit specific locations to observe and enjoy bald and golden eagles. The court also found that the Plaintiffs asserted an injury that was not speculative given a Federal Register Notice regarding a utility's application for a 30-year programmatic take permit for a project in the county in which the Plaintiffs live.9
NEPA Violation: The court found that the FWS violated NEPA by relying on the categorical exclusion in 43 C.F.R. § 46.210(i), which excludes from further NEPA review regulations that are "of an administrative…nature; or whose 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 court first held that the FWS had failed to demonstrate that either of the two elements of the categorical exclusion applied to the 30-Year Rule.10 The court concluded that changing the term from five years to thirty years was not "merely administrative in nature," because the increase has the "effect of reducing public participation in permitting decisions." The court reasoned that, under the 5-Year Rule, a project would be subject to NEPA's public participation requirements six times during a 30-year period, whereas under the 30-Year Rule, a project would only be subject to those requirements once. The court also concluded that the substantive concerns that motivated the Rule's adoption, i.e., the Rule would facilitate construction of wind power facilities by allowing the projects to operate longer term, weighed against the FWS' conclusion that the 30-Year Rule was purely administrative. In addition, internal FWS staff emails suggested that relying on a categorical exclusion was not appropriate. The court further held that FWS failed to adequately demonstrate that environmental effects were too broad or speculative to lend themselves to meaningful analysis.
The court also reasoned that extraordinary circumstances precluded FWS from relying on the categorical exclusion.11 The court stated that there was "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." In reaching this conclusion, the court cited FWS' awareness that eagles can be killed by colliding with structures, that FWS expressed concern about the effects wind power facilities may have on eagle populations, and that other agencies, as well as FWS staff, expressed concerns about the impacts of extending the permit term on bald and golden eagles. The court summarized: "Where, as here, the agency has failed to adequately address concerns raised by its own experts indicating that the Final 30-Year Rule may have highly controversial environmental effects—and has failed to cite expert opinion to the contrary—the agency action should be set aside."12 The court held that FWS violated NEPA by failing to prepare an EA or EIS, and remanded the rule to the agency for further consideration.
1 Shearwater v. Ashe, Case No. 14-CV-02830-LHK, 2015 U.S. LEXIS 106277 (N.D. Cal. August 11, 2015)
4 Shearwater, Case No. 14-CV-02830-LHK, slip op. at 9-10, 16.
5 Id. at 13 (quoting 78 Fed. Reg. 73,704, 73,721 (Dec. 9, 2013).
6 Id. at 10, 16 (quoted authority omitted). FWS also concluded that it was not required to comply with the Endangered Species Act (ESA) consultation requirements in promulgating the draft or final Rule, a position with which the court agreed. Shearwater, Case No. 14-CV-02830-LHK, at 44-45.
8 Id. at 21 (quoted authority omitted).