PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, et al., Appellants v. Abigail Ross HOPPER, Acting Director, U.S. Bureau of Ocean Energy Management, et al., Appellees. Town of Barnstable, Massachusetts, et al., Appellees v. Abigail Ross HOPPER, Acting Director, U.S. Bureau of Ocean Energy Management, et al., Appellees.
No. 14-5301 Consolidated with 14-5303
United States Court of Appeals, District of Columbia Circuit.
Argued February 11, 2016 Decided July 5, 2016
1077
Accordingly, we deny the Company‘s petition and grant the Board‘s cross-application for enforcement of its 2014 Decision and Order.
Eric R. Glitzenstein, Washington, DC, argued the cause for appellants Public Employees for Environmental Responsibility, et al. With him on the briefs was William S. Eubanks II, Wellborn, FL.
Todd D. Lochner, Annapolis, MD, was on the brief for amici curiae Cape Cod Marine Trades Association, Inc. and Massachusetts Fishermen‘s Partnership, Inc. in support of appellants.
J. David Gunter II, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were John C. Cruden, Assistant Attorney General, and Luther L. Hajek, Attorney.
Christopher H. Marraro, Washington, DC, argued the cause for intervenor Cape Wind Associates, LLC. With him on the brief was Geraldine E. Edens, Washington, DC.
Before: MILLETT and WILKINS, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
RANDOLPH, Senior Circuit Judge:
The Cape Wind Energy Project is a proposal to generate electricity from windmills off the coast of Massachusetts. It calls for the “construction, operation and maintenance of 130 wind turbine generators” in the Horseshoe Shoal region of Nantucket Sound. The turbines have an estimated life-span of twenty years, and during that time they are expected to generate up to three-quarters of the electricity needs for Cape Cod and the surrounding islands. The project‘s “underlying purpose” is to help the region achieve Massachusetts‘s renewable energy requirements, which “mandate that a certain amount of electricity come from renewable energy sources, such as wind.” See
Offshore energy providers like Cape Wind must comply with a slew of federal statutes designed to protect the environment, promote public safety, and preserve historic and archeological resources on the outer continental shelf.1 They must also go through “several regulatory and administrative procedures” to satisfy regulations promulgated under these statutes. Pub. Emps. for Envtl. Responsibility v. Beaudreau, 25 F.Supp.3d 67, 85 (D.D.C. 2014), appeal dismissed sub nom. Pub. Emps. for Envtl. Responsibility v. Cruickshank, No. 14-5117, 2014 WL 3014869 (D.C. Cir. June 11, 2014).
Cape Wind first sought government approval for its project in 2001 when it filed a permit application with the United States Army Corps of Engineers, the federal agency then regulating outer continental shelf wind energy projects. See All. to Protect Nantucket Sound, Inc. v. U.S. Dep‘t of Army, 398 F.3d 105, 107 (1st Cir. 2005);
Plaintiffs are the Alliance to Protect Nantucket Sound, Public Employees for Environmental Responsibility, and others. They claim that the government violated half a dozen federal statutes in allowing Cape Wind‘s project to move through the regulatory approval process. See Pub. Emps., 25 F.Supp.3d at 77-79. The Bureau allegedly violated the National Environmental Policy Act (NEPA),
On March 14, 2014, the district court rejected most of these claims and granted partial summary judgment to the government agencies. See Pub. Emps., 25 F.Supp.3d at 130. On November 18, 2014, the court rejected plaintiffs’ remaining claims, granted summary judgment, and dismissed the case. We “review de novo the district court‘s grant[s] of summary judgment,” and “apply the arbitrary and capricious standard of the Administrative Procedure Act,
I
Plaintiffs challenge the Bureau‘s decision to issue the lease for Cape Wind‘s project without first obtaining “sufficient site-specific data on seafloor and subsurface hazards” in Nantucket Sound. Alliance Br. at 26-27. They argue that the Bureau violated the National Environmental Policy Act,
Under NEPA, an agency must “consider every significant aspect of the environmental impact of a proposed action.” Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); see
The principal way the government informs the public of its decisionmaking process is by publishing environmental impact statements. See
In 2004, the Army Corps of Engineers issued a draft impact statement for the Cape Wind project. After the Bureau assumed authority, it reviewed the Corps‘s draft statement, “identified information requirements and/or issue areas that [were] incomplete,” and announced that it would issue its own impact statement. See Notice of Intent to Prepare an Environmental Impact Statement, 71 Fed. Reg. 30,693 (May 30, 2006). The Bureau published draft and final impact statements in 2008 and 2009, respectively. See 73 Fed. Reg. 3,482 (Jan. 18, 2008); 74 Fed. Reg. 3,034 (Jan. 16, 2009).
Plaintiffs argue that the Bureau‘s 2009 impact statement is arbitrary and capricious because it does not adequately assess the seafloor and subsurface hazards of the Sound.3 They claim that the statement relies on inadequate geological surveys, which according to the Bureau‘s internal guidance, help determine whether “the seafloor [is] able to support large structures,” and whether “important archaeological and prehistoric features [can] be protected.” In support, plaintiffs refer to a series of internal Bureau emails describing “the dearth of geophysical data over the entire area” of the proposed wind farm. For example, in December 2006, Richard Clingan, the Bureau geologist overseeing the impact statement‘s geophysical data section, emailed a list of concerns to the Bureau‘s “Cape Wind Project Manager,” Rodney Cluck, including that “[t]here is no indication that [Cape Wind] ha[s] adequate data to address” various geological hazards, and that Cape Wind‘s surveys “don‘t seem to conform (even loosely) to the ‘Guidance Notes on Site Investigations for Offshore Renewable Energy Projects‘....” His emails referred to three surveys conducted for Cape Wind between 2001 and 2005 that the Bureau concedes were “insufficient” to “support
The Bureau downplays the significance of its geologist‘s concerns, attributing them to “a robust internal debate,” and claiming that there was at least sufficient data “to support [the Bureau‘s] initial decision... to offer a lease,” if not to justify final construction of the windmills. Defendants Br. at 41-42. The Bureau also disputes whether Clingan actually harbored such serious concerns, noting that his email “acknowledge[s] that the data... constitute[s] ‘an informative reconnaissance-level survey of the project area....‘” Defendants Br. at 40.4
We do not think the Bureau has “fulfilled its duty to take a ‘hard look’ at the geological and geophysical environment” in Nantucket Sound. Defendants Br. at 40. NEPA requires federal agencies to prepare impact statements for all “major [f]ederal actions significantly affecting the quality of the human environment.” Sierra Club, 803 F.3d at 37. The Bureau does not contest that issuing a renewable energy lease constitutes a major federal action. Compare Pub. Emps., 25 F.Supp.3d at 126; Alliance Mot. Summ. J. at 80-83, No. 1:10-cv-01067-RBW (D.D.C. June 14, 2013), ECF No. 283. Therefore, the question is whether the Bureau “consider[ed] every significant aspect of the environmental impact” of the project, including the subsurface environment. Balt. Gas, 462 U.S. at 97, 103 S.Ct. 2246. The Bureau distinguishes between the “initial decision” to issue a lease and the consequences of that decision. Defendants Br. at 42. Cape Wind also points out that the impact statement required “additional geophysical... surveys” once the project was authorized, and claims these surveys were completed in 2012. See Cape Wind Intervenor Br. at 6. But there is no evidence the Bureau relied on any additional surveys in its impact statement, and NEPA does not allow agencies to slice and dice proposals in this way. Agencies must take a “hard look” at the environmental effects of a major federal action “and consequences of that action.” Robertson, 490 U.S. at 352, 109 S.Ct. 1835 (italics added). The impact statement must therefore look beyond the decision to offer a lease and consider the predictable consequences of that decision. By relying solely on data so roundly criticized by its “own experts,” the Bureau failed to fulfill this duty. W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 493 (9th Cir. 2011). Of course, an agency need not be clairvoyant. In some cases it may be appropriate for an impact statement to provide for ongoing monitoring in order to gather more data. See Theodore Roosevelt Conservation P‘ship v. Salazar, 616 F.3d 497, 517 (D.C. Cir. 2010). But that does not excuse the Bureau from its NEPA obligation to gather data about the seafloor. Without adequate geological surveys, the Bureau cannot “ensure that the seafloor [will be] able to support” wind turbines.
The Bureau therefore violated NEPA, but that does not necessarily mean that the project must be halted or that Cape Wind must redo the regulatory ap-
Plaintiffs argue that Cape Wind‘s failure to complete the surveys dooms the project for another reason. They say that Bureau regulations require Cape Wind to complete the surveys before the Bureau can approve Cape Wind‘s “Construction and Operations Plan.”
Bureau regulations require offshore energy providers to submit “detailed information” with their construction plans to “assist [the Bureau] in complying with NEPA and other relevant laws.”
Alternatively, plaintiffs argue that the Bureau violated its own regulations because “[t]here is no written departure in the record.” Alliance Br. at 37; see
II
Plaintiffs next argue that Coast Guard and the Bureau violated the Maritime Transportation Act by failing to include adequate terms and conditions in Cape Wind‘s Renewable Energy Lease. See 120 Stat. 516, 540. Cape Wind‘s lease “authoriz[es] the use of [the Horseshoe Shoal],”
The Coast Guard released its terms and conditions for the Cape Wind Project on August 2, 2007. The terms required Cape Wind to satisfy several immediate conditions, such as devising a turbine “marking scheme” to aid in navigation through the wind farm, some ongoing reporting obligations, like filing monthly “construction status” reports, and some future research requirements, including examining whether the turbines “would interfere in any way with marine communications or navigation systems....” According to the Coast Guard, its terms would sufficiently “provide for navigational safety” in Nantucket Sound.
Plaintiffs argue that the Coast Guard‘s terms requiring ongoing reporting and research violate § 414. They say that § 414 requires the Coast Guard to “assure navigational safety before the [p]roject is approved,” and that these forward-looking terms mean that the Coast Guard will be able to do so “only after various analyses... are completed.” Alliance Br. at 9, 11. The district court disagreed. It compared § 414‘s requirements to the licensing scheme in § 4(e) of the Federal Power Act,
We agree with the court that the Coast Guard‘s terms comply with § 414, but for somewhat different reasons. Section 414 requires the Coast Guard to “specify the reasonable terms and conditions the [Coast Guard] determines to be necessary to provide for navigational safety” in Nantucket Sound. 120 Stat. 516, 540, § 414(a) (italics added). The Coast Guard stated that its terms met this requirement, and we are hesitant to second guess that determination “given the Coast Guard‘s expertise” in
Plaintiffs also claim that the Coast Guard violated § 414 by failing to issue terms for the “alternative [project] sites under consideration.” Alliance Br. at 19. They point to § 414‘s requirement that the Coast Guard issue terms for “each alternative to the proposed lease,” 120 Stat. 516, 540, § 414(a), and interpret this to mean that the Coast Guard must provide terms for each “NEPA alternative.” Pub. Emps., 25 F.Supp.3d at 100. NEPA requires agencies to analyze all “reasonable” or “feasible” alternatives to proposed actions, which plaintiffs say includes alternative project locations. Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991); see
We need not decide this question of interpretation because any error by the Coast Guard was harmless. While the Bureau was conducting research for its impact statement, it learned that the alternative sites were “not technically feasible,” not “economically viable,” or would have greater “[e]nvironmental impacts” than the Horseshoe Shoal site.10 Therefore, the Coast Guard‘s failure to issue terms for alternative sites did not affect the Bureau‘s ultimate decision to choose the Horseshoe Shoal. See
III
Plaintiffs’ final contention is that the Fish and Wildlife Service violated the Endangered Species Act. See
The Bureau began consultations with the Service in November 2005 to determine whether the project could harm any endangered or threatened species. On October 31, 2008, the Service estimated that although Cape Wind‘s activities would not “jeopardize the continued existence” of any listed species,
In June 2010, Plaintiffs challenged the incidental take statement on the grounds that the Service had “improperly delegat[ed] to Cape Wind and to the [Bureau]” its duty to independently evaluate and recommend mitigation measures. Pub. Emps., 25 F.Supp.3d at 107. The district court initially agreed, explaining that the Endangered Species Act requires the Service to “make an independent determination” whether feathering “was a reasonable and prudent measure....” Id. at 130. The court therefore remanded the case on March 14, 2014, for the Service to “make the required independent determination on this point.” Id.
On remand, plaintiffs submitted scientific and economic data to the Service that argued feathering “would have, at most, a minuscule economic impact on the project,” and that the government has previously required other wind projects to “make comparable operational adjust-
Plaintiffs argued that because the Service considered its economist‘s 2014 analysis, the Service was required to considered plaintiffs’ submissions as well. Plaintiffs also challenged the merits of the Service‘s decision to exclude feathering. In November 2014, the district court dismissed these challenges on the grounds that they were either “waived or were already dismissed by the [c]ourt.” Although the court‘s March 2014 order required the Service to “make the required independent determination,” Pub. Emps., 25 F.Supp.3d at 130 (italics added), in November the court interpreted its order to require only that the Service “clarify[] that it made an independent determination in 2008....” Joint Appendix at 777-78 (italics added). Therefore, according to the court, the Service was not
Plaintiffs may be correct that the district court‘s remand order required the Service to “make” a new independent determination, and therefore reopened the record. PEER Br. at 26. On the other hand, the Service may be correct that the court‘s remand order required the Service to only “clarify” that it made an independent determination in 2008. Defendants Br. at 61; see AT&T Wireless Servs., Inc. v. FCC, 365 F.3d 1095, 1099 (D.C. Cir. 2004) (“The court is generally the authoritative interpreter of its own remand....“). We need not decide who is right. Even if the district court‘s order did not reopen the administrative record, the Service did so on its own. The Service decided to exclude feathering based on “[t]he expert opinion of [its] in-house economist,” which he communicated to the Service on May 28, 2014. That he reviewed information available in 2008 is beside the point. He analyzed the information in 2014. He did so “in response” to the court‘s 2014 remand order. The Service concedes that his opinion “reflected an additional analysis of the decision” to exclude feathering, Defendants Br. at 63, and that the Service then relied upon this opinion “[i]n particular” to “find that the draft feathering [measure] would not be reasonable.” By doing so, the Service reopened the record and was required to consider plaintiffs’ submissions.
We therefore hold that the Service‘s decision to disregard plaintiffs’ submissions was arbitrary and capricious, and we vacate the incidental take statement. Because we vacate the statement, we need not decide whether the district court erred by denying plaintiffs the opportunity to challenge its merits.
IV
We reverse the district court‘s judgment that the Bureau‘s environmental impact statement complied with NEPA and that the Service‘s incidental take statement complied with the Endangered Species Act, and we vacate both statements. See
So ordered.