Public Employees for Environmental Responsibility v. Hopper
424 U.S. App. D.C. 11
| D.C. Cir. | 2016Background
- Cape Wind proposed 130 offshore turbines in Horseshoe Shoal, Nantucket Sound to supply regional renewable energy; project applied for federal approvals beginning in 2001.
- Regulatory authority shifted from Army Corps to Bureau of Ocean Energy Management (the Bureau) after 2005; Bureau issued draft (2008) and final (2009) Environmental Impact Statements (EIS).
- Plaintiffs (Alliance to Protect Nantucket Sound, PEER, others) challenged multiple agency actions under NEPA, the Shelf Lands Act, the Maritime Transportation Act, the Endangered Species Act (ESA), Migratory Bird Treaty Act, and related regulations.
- Key factual contention: the Bureau issued the lease and final EIS while its own geologist and internal communications identified inadequate geophysical and geotechnical site data for the seabed near proposed turbine locations.
- Coast Guard provided terms and conditions addressing navigational safety, some forward-looking (monitoring/research); Fish and Wildlife Service issued an incidental take statement estimating bird takes and declined to require turbine "feathering" (temporary shutdowns) as mitigation.
- District court granted summary judgment to agencies on most claims; this appeal concerns (inter alia) adequacy of the EIS under NEPA and the Service’s ESA incidental take statement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of seafloor/geotechnical data in EIS under NEPA | EIS relied on inadequate geophysical/geotechnical surveys; Bureau ignored its own experts and failed to take a "hard look" at subsurface hazards | Data were sufficient to justify leasing decision; additional surveys could be done later and departures from timing were permissible | Bureau violated NEPA by relying on inadequate geological data in the EIS; court vacated the EIS and ordered supplementation with adequate surveys before construction, but did not void the lease or approvals |
| Regulatory departure/timing of required surveys (30 C.F.R. regs) | Bureau could not depart from regulation timing because surveys are required to comply with NEPA and other laws; departure was not in writing | Departure was properly granted in writing (2010 letter) to allow financing; regulations permit written departures and do not impose a pre-construction timing absolute | Court upheld the regulatory departure as validly documented and not inconsistent with statutes; Bureau required surveys before commencing construction, satisfying statutory obligations |
| Coast Guard terms under Maritime Transportation Act §414 (navigational safety; alternatives) | Terms were insufficiently protective because they allowed forward-looking research rather than assuring safety pre-approval; Coast Guard failed to issue terms for NEPA alternatives | Terms reasonably provide for navigational safety and forward-looking conditions are appropriate given expertise and statutory scheme; §414 alternatives refer to proposals submitted by lessee | Court upheld Coast Guard terms as reasonable (deferring to agency expertise); any failure to issue terms for NEPA alternatives was harmless because alternatives were infeasible or inferior |
| ESA incidental take statement; feathering mitigation and reopened record on remand | Service improperly delegated independent ESA analysis to Bureau/Cape Wind and failed to consider later plaintiff submissions on feasibility/economic impact of feathering; remand required a new independent determination and reopening of the record | Service asserts it made an independent determination in 2008 and on remand only needed to clarify that; relied on in-house economist’s 2014 analysis and contends record need not be reopened | Court held Service reopened the record by relying on a 2014 economist analysis but then ignored plaintiffs’ 2014 submissions; that omission was arbitrary and capricious—vacated the incidental take statement and remanded |
Key Cases Cited
- Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87 (agencies must consider every significant aspect and take a "hard look" under NEPA)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA requires agencies to consider consequences of major federal actions)
- Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31 (D.C. Cir.) (NEPA applies to authorization/permitting of private actions)
- Theodore Roosevelt Conservation Partnership v. Salazar, 616 F.3d 497 (D.C. Cir.) (EIS may provide for monitoring but cannot excuse failure to gather critical baseline data)
- W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir.) (reliance on internally criticized data can render agency action arbitrary)
- Bennett v. Spear, 520 U.S. 154 (agencies must provide incidental take statements and recommend reasonable and prudent measures under ESA)
- Collins v. Nat’l Transp. Safety Bd., 351 F.3d 1246 (D.C. Cir.) (courts defer to agency expertise on technical matters)
- NRDC v. U.S. Nuclear Regulatory Comm’n, 606 F.2d 1261 (D.C. Cir.) (courts weigh equities and public interest before halting a project for procedural violations)