831 F.3d 564
D.C. Cir.2016Background
- Buckeye Wind sought an incidental take permit (ITP) under ESA §10 to build a ~250 MW wind farm in Champaign County, Ohio, where Indiana bats forage and migrate; Buckeye submitted a Habitat Conservation Plan (HCP) with siting, operational limits (feathering and variable cut‑in speeds up to 6.0 m/s), habitat protection (217 acres), and funding commitments.
- The Service prepared a Draft and Final EIS, analyzed Buckeye’s proposal, a No Action Alternative, a Minimal Alternative (5.0 m/s cut‑in during high‑risk hours), and a Max Alternative (shut down turbines at night April–October), and issued the ITP finding Buckeye’s HCP "minimizes and mitigates" impacts "to the maximum extent practicable."
- Buckeye’s proposal estimated ~5.2 Indiana bats taken per year; the Max Alternative would eliminate take but was projected to cause substantial lost energy and revenue and likely prevent the project from being built.
- Union Neighbors challenged issuance of the ITP in district court, arguing (1) NEPA required analysis of a reasonable, economically feasible alternative that would take fewer bats (e.g., higher permanent cut‑in speeds); and (2) the Service misinterpreted ESA §10(a)(2)(B)(ii) concerning what "impacts" must be minimized and the meaning of "to the maximum extent practicable."
- The district court upheld the Service; the D.C. Circuit reversed in part (NEPA) and affirmed in part (ESA), remanding for further NEPA analysis while upholding the Service’s ESA interpretation under Skidmore.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the EIS considered a "reasonable range of alternatives" under NEPA | Service failed to analyze any economically feasible alternative that would take fewer bats (e.g., higher cut‑in speed like 6.5 m/s) | Service considered reasonable alternatives (Buckeye plan, Minimal, Max, No Action); infinite permutations need not be analyzed; Max offers a useful comparison | Court: NEPA violation — Service failed to analyze a reasonable, economically feasible alternative that would reduce take below Buckeye’s plan; remand required |
| Proper interpretation of "impacts" in ESA §10(a)(2)(B)(ii) (what must be minimized/mitigated) | "Impacts" means discrete individual takings (must minimize number of individual bats) | "Impacts" refers to biological effects on populations/subpopulations and species‑level consequences; Service’s interpretation persuasive | Court: Defer to Service under Skidmore — "impacts" means population/subpopulation/species effects, not solely raw count of individuals; Service’s findings not arbitrary |
| Meaning and application of "to the maximum extent practicable" and whether minimize/mitigate are sequential | Minimization (reduce number taken) must be maximized first; then mitigation considered; Service applied an improper combined standard | Service treats "minimize and mitigate" jointly (assess adequacy of measures and practicability together); economic feasibility considered where relevant; combined approach reasonable | Court: Service’s joint treatment persuasive; its finding that combined minimization+mitigation offset impacts satisfied the statutory standard |
| Whether Gerber requires independent agency finding that reduced‑impact alternatives are impracticable | Gerber requires the Service to make an independent finding that any known reduced‑impact alternative is impracticable before issuing permit | Service made practicability findings re: Max Alternative (economic/production losses; project likely would not be built); for other alternatives court reserved whether further findings may be required after remand | Court: On this record, Service’s rejection of Max Alternative suffices; Gerber claim not a basis to set aside the ESA findings now (may require more if new alternatives are adopted on remand) |
Key Cases Cited
- WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013) (NEPA requires adequate consideration of environmental effects and alternatives)
- New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) (NEPA is procedural, ensures informed agency decisionmaking)
- Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) (NEPA’s procedural mandate and limits on courts substituting judgment)
- Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983) (NEPA’s twin aims: consider environmental impacts and inform the public)
- Gerber v. Norton, 294 F.3d 173 (D.C. Cir. 2002) (agency must address reduced‑impact alternatives or explain impracticability)
- Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) (framework for judicial deference to agency statutory interpretations)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency interpretations receive deference proportional to persuasiveness)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard for agency action)
- Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687 (1995) (Congress delegated broad discretion to Secretary under ESA)
- Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991) ("rule of reason" governs EIS alternatives analysis)