Credit: By ELIZABETH WARMERDAM | Courthouse News Service | August 13, 2015
SAN JOSE (CN) – A federal judge Tuesday rejected a federal regulation allowing wind companies to kill or injure bald and golden eagles without prosecution for 30 years, citing lack of proper environmental review.
The U.S. Fish and Wildlife Service issued the rule in December 2013, allowing wind energy projects, electric utilities and timber operations to obtain eagle take permits lasting up to 30 years, rather than 5 years.
But U.S. District Judge Lucy Koh found that Fish and Wildlife did not complete a National Environmental Policy Act-compliant impact statement or environmental assessment before increasing the eagle take permits sixfold.
Eric Glitzenstein, attorney for the American Bird Conservancy, told Courthouse News that while expansion of renewable energy is “vitally important,” there is “a right way to do it and a wrong way to do it.”
“As this ruling makes clear, the wrong way is for the government to cut legal corners, ignore its own environmental experts, and needlessly jeopardize eagles and other protected species,” he said.
Bald and golden eagles are not endangered species, but are protected by the Bald and Golden Eagle Protection Act, which prohibits anyone from killing, injuring or disturbing eagles, incidentally or intentionally.
But the Fish and Wildlife Service can issue permits for the “take” – killing or disturbing – of eagles if they are “compatible with the preservation” of eagles and “necessary to protect an interest in a particular locality.”
In 2009, Fish and Wildlife adopted a rule setting the maximum duration for each permit to take eagles at 5 years. After 5 years, applicants can request renewal, allowing Fish and Wildlife to re-evaluate the permit conditions to determine whether more eagles were killed than anticipated.
In December 2013, the government sextupled the take period, to allow companies to obtain 30-year permits to kill eagles legally.
The American Bird Conservancy called it a response to the wind power industry’s desire to expand into eagle habitat.
Indeed, the regulation itself states that the primary purpose of the expansion was to “facilitate the responsible development of renewable energy and other projects designed to operate for decades.”
The Conservancy challenged the rule , saying it was adopted “in flagrant violation of the National Environmental Policy Act because the Service did not prepare any document analyzing the environmental impacts of the rule change.”
Judge Koh agreed, noting that Fish and Wildlife elected not to prepare an environmental impact statement or an environmental assessment, and improperly relied on a two-part categorical exclusion to avoid NEPA review.
Fish and Wildlife determined that the 30-year rule was merely administrative in nature and that the rule’s “environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis,” Koh wrote.
But its decision to increase the take permits to 30 years was not merely administrative in nature, Koh said.
“(T)here is no serious dispute that a sixfold increase in the maximum duration of programmatic eagle take permits will have the effect of reducing public participation in permitting decisions. Over the lifespan of a 30-year permit, a project might be subject to NEPA’s public participation requirements only once, when that permit is first issued,” Koh said in the 46-page ruling.
“By contrast, a project under a 5-year permitting regime would be subject to NEPA’s public participation requirement six times during that same 30-year period. FWS’s apparent compromise to make eagle mortality data compiled by permittees every 5 years ‘available to the public’ in some unspecified manner is no substitute for the public’s right under NEPA to participate in permitting decisions.”
Also, the primary purpose of the 30-year rule was to facilitate energy generation projects. The wind industry had criticized the 5-year rule as “fundamentally unworkable for the industry considering the life of most wind projects is 20 to 30 years,” according to the ruling.
The Secretary of the Interior acknowledged that the rule would help the renewable industry develop longer-term projects. Because the wind industry’s substantive concerns ultimately resulted in the 30-year rule, Koh “fails to see how the regulation could be considered strictly administrative.”
She also rejected Fish and Wildlife’s claim that the environmental effects of the rule are too speculative for meaningful analysis.