Public Employees for Environmental Responsibility v. Beaudreau
25 F. Supp. 3d 67
D.D.C.2014Background
- Four sets of related claims challenge offshore wind Cape Wind approvals in Nantucket Sound.
- Plaintiffs include PEER and allied groups, the Town of Barnstable, the Alliance, and the Wampanoag Aquinnah Tribe.
- Defendants include federal agencies (BOEM, FWS, NMFS, Coast Guard) and Cape Wind; core statutes are APA, ESA, NEPA, Migratory Bird Treaty Act, Preservation Act, and Shelf Lands Act.
- Cape Wind project underwent ESA Section 7 consultations and NEPA/Shelf Lands Act processes; Coast Guard §414 navigational-safety requirements were incorporated into a lease.
- BOEM issued a 2010 ROD lease to Cape Wind; Coast Guard terms and conditions were deemed necessary for navigational safety and implemented in the lease.
- Plaintiffs allege failures in ESA determinations, NEPA analyses, Section 106 consultation, and Bird/Migratory Act compliance; court granted partial summary judgment and remanded certain ESA issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 414 of the Coast Guard Act governs final agency action | Barnstable/Alliance contend § 414 terms are final action violating APA and process. | Coast Guard/Cape Wind argue either no final action or compliance with § 414; if final, terms are reasonable and consistent with law. | Summary judgment for defendants; § 414 terms sustained as reasonable and linked to navigational safety. |
| Whether BOEM relied on Coast Guard navigational findings in Shelf Lands Act review | BOEM violated Shelf Lands Act by relying on Coast Guard findings that allegedly misstate safety impacts. | Findings provide rational basis; reliance consistent with statutory duties and substantial evidence. | BOEM's reliance upheld; no Shelf Lands Act violation. |
| Whether FWS independently determined feathering as a reasonable and prudent measure under ESA | FWS delegated independent decision to BOEM/Cape Wind; failed to make its own independent determination. | FWS engaged in consultation and assessments; feathering considered as a reasonable measure. | Summary judgment for plaintiffs; FWS required to make independent determination on feathering. |
| Whether NMFS failed to issue an incidental take statement for right whales | NMFS did not issue an incidental take statement for right whales despite potential take. | NMFS concluded not likely to adversely affect right whales; incidental take statement not required. | Summary judgment for plaintiffs; NMFS must issue incidental take statement for right whales. |
| Whether NEPA required a supplemental EIS due to Construction and Operations Plan changes | A new major federal action and new information necessitate supplement; several data gaps exist. | No new major action requiring a supplement; information analyzed in assessments; not arbitrary or capricious. | Summary judgment for defendants; no mandatory supplemental EIS required. |
Key Cases Cited
- Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) (two-step deference framework for statutory interpretation)
- Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 465 (1984) (reasonableness of agency conditioning in licenses; Escondido/Bangor-like review)
- Bangor Hydro-Elec. Co. v. Fed. Energy Regulatory Comm’n, 78 F.3d 659 (D.C. Cir. 1996) (agency conditions must be reasonably related and supported by evidence)
- Bluewater Network v. EPA, 372 F.3d 404 (D.C. Cir. 2004) (deferential review; rational connection between facts and decision)
- National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (deference to agency scientific judgments; substantial evidence standard)
- Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) (agency must rigorously explore and evaluate environmental impacts; deference to agency expertise)