83 F. Supp. 3d 280
D.D.C.2015Background
- Union Neighbors United sued DOI, FWS, and FWS Regional Director challenging issuance of a Section 10 incidental take permit (ITP) to Buckeye Wind for the Buckeye Wind Project in Champaign County, Ohio.
- The Project is a 100-turbine wind facility; FWS estimated the approved operational regime would permit up to 130 Indiana bat takes over 25 years.
- Buckeye Wind’s Habitat Conservation Plan (HCP) proposed feathered, seasonally-variable increased cut-in speeds (roughly 3.0–6.0 m/s) and proposed mitigation including acquisition/protection of habitat near a Priority 2 hibernaculum.
- FWS prepared an EIS, biological opinion (finding no jeopardy), and concluded the minimization and mitigation measures “fully offset” impacts and met the statutory standard of minimizing and mitigating “to the maximum extent practicable.”
- Plaintiff argued FWS misinterpreted the ESA’s “maximum extent practicable” (should force lower take first, then mitigate), and that NEPA required consideration of plaintiff’s preferred 6.5 m/s cut-in speed alternative.
- The district court granted defendants’ summary judgment, denied plaintiff’s motion, and dismissed the case with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Union Neighbors lacks concrete injury because members only "likely" saw Indiana bats | Project will kill bats (ITP authorizes 130 takes) and named members allege imminent observational injury | Plaintiff has standing; challenged take is concrete and imminent |
| Interpretation of "maximum extent practicable" under ESA §10 | "Maximize minimization first": agency must minimize takes to lowest possible level before relying on mitigation | FWS reasonably interprets phrase to allow mitigation that fully offsets impacts; no need to force additional minimization once impacts are offset | Court defers to FWS (Chevron); agency interpretation reasonable and upheld |
| Need to independently analyze plaintiff‑proposed alternatives (Gerber issue) | Gerber requires agency to independently show a plaintiff‑proposed reasonable alternative is impracticable if it reduces take | FWS made a substantive finding that the HCP’s measures fully offset impacts and that the project would not cause statistically significant population impacts | Gerber inapplicable; FWS satisfied its duty by finding the HCP offset impacts |
| NEPA—choice of alternatives | EIS should have considered plaintiff’s 6.5 m/s cut-in alternative | Agency reasonably considered project proposal, a maximally restrictive curtailment alternative, a minimally restrictive 5.0 m/s alternative, and no action; it may limit alternatives under the rule of reason | Court upholds EIS as reasonable under NEPA; omission of 6.5 m/s alternative not a violation |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (agency statutory interpretation deference)
- Motor Vehicle Manufacturers Ass'n v. State Farm, 463 U.S. 29 (arbitrary and capricious standard)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing principles for environmental plaintiffs)
- Summers v. Earth Island Institute, 555 U.S. 488 (standing precedents discussed)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (administrative record review / arbitrary and capricious framework)
- Gerber v. Norton, 294 F.3d 173 (D.C. Cir.) (discussed limits on agency reliance on developer claims)
- Nat'l Wildlife Fed'n v. Norton, 306 F. Supp. 2d 920 (E.D. Cal.) (upholding FWS interpretation of "maximum extent practicable")
- WildEarth Guardians v. U.S. Fish & Wildlife Serv., 622 F. Supp. 2d 1155 (D. Utah) (interpreting mitigation as rationally related to level of take)
- Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir.) (NEPA rule of reason for alternatives)