Union Neighbors United, Inc. v. Jewell

          Argued March 8, 2016

         Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-01435)

          W. William Weeks argued the cause and filed the briefs for appellant.

          Robert P. Stockman, 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 David C. Shilton, Attorney.

          Paul S. Weiland argued the cause for intervenor-appellee Buckeye Wind LLC. With him on the brief was Steven P. Quarles.

          Before: Srinivasan, Millett and Wilkins, Circuit Judges.

          OPINION

          WILKINS, CIRCUIT JUDGE

         Buckeye Wind, LLC ("Buckeye") wants to build a wind farm in Ohio. However, that wind farm may pose a danger to the Indiana bat, a federally listed endangered species. In order to comply with the Endangered Species Act ("ESA"), Buckeye applied for an incidental take permit with the United States Fish and Wildlife Service ("the Service") and submitted a conservation plan. The conservation plan provided that Buckeye would site its turbines away from known Indiana bat habitats, adjust the turbines' operating times and speeds, and protect additional habitat. The Service issued the permit.

         Union Neighbors United, Inc. ("Union Neighbors") challenges the issue of the permit, claiming that the Service failed to comply with its obligations under the National Environmental Procedures Act ("NEPA") and failed to make required findings under the ESA. As to the Service's NEPA violations, Union Neighbors claims that it failed to consider a reasonable range of alternatives before issuing the permit. With regard to the ESA, Union Neighbors claims that the Service applied the incorrect standard in finding that Buckeye "to the maximum extent practicable, minimize[d] and mitigate[d] the impacts of such taking." 16 U.S.C. § 1539(a)(2)(B)(ii). We conclude the Service failed to comply with its NEPA obligations when it failed to consider an economically feasible alternative that would take fewer bats than Buckeye's proposal, and we reverse the District Court on that point. However, we also conclude that the Service's interpretation of the ESA is entitled to deference. In light of its interpretation, the Service complied with its ESA obligations, and we affirm the judgment of the District Court on Union Neighbors' ESA claims accordingly.

         I.

         A.

         The Service's decision to issue the permit to Buckeye implicates two statutory schemes: NEPA and the ESA.

         NEPA "requires federal agencies . . . to consider and report on the environmental effect of their proposed actions." WildEarth Guardians v. Jewell, 738 F.3d 298, 302 (D.C. Cir. 2013). "NEPA is an 'essentially procedural' statute intended to ensure 'fully informed and well-considered' decisionmaking . . . ." New York v. NRC, 681 F.3d 471, 476 (D.C. Cir. 2012) (quoting Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978)). "NEPA has twin aims. First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983) (internal quotation marks and citations omitted). An agency meets these aims through the preparation of an Environmental Impact Statement ("EIS") for agency action that will "significantly affect[] the quality of the human environment." 42 U.S.C. § 4332(C). The EIS must explore, inter alia, "the environmental impact of the proposed action," id. § 4332(C)(i); "any adverse environmental effects which cannot be avoided should the proposal be implemented," id. § 4332(C)(ii); and "alternatives to the proposed action," id. § 4332(C)(iii).^[1] The discussion of alternatives must "[r]igorously explore and objectively evaluate all reasonable alternatives." 40 C.F.R. § 1502.14.

         The Service's decision to issue the permit also required compliance with the ESA. The ESA provides a means to conserve endangered or threatened species and their ecosystems. 16 U.S.C. § 1531(b). The Secretary of the Interior, who administers the ESA via the Service, lists endangered and threatened species and designates critical habitat for those species. Id. § 1533(a)(2)(A); (a)(3)(A). An endangered species is "any species which is in danger of extinction throughout all or a significant portion of its range." Id. § 1532(6). The ESA prohibits the "take" of an endangered species within the United States. Id. § 1538(a)(1)(B). "Take" is a term of art that "means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19). Although taking is prohibited, the Service may issue a permit to allow for an "incidental" taking, meaning the taking is "not the purpose of[] the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B). In order to receive a permit, the applicant must submit a conservation plan that complies with certain specified requirements laid out at 16 U.S.C. § 1539(a)(2)(A).

         After receiving the application, the Service publishes a notice and receives comment on whether the permit should issue. See id. § 1539(a)(2)(B); 50 C.F.R. § 17.22 (endangered species), 17.32(b)(1)(ii) (threatened species). The Service "shall issue the permit" if it receives "assurances" that the conservation plan will be implemented and if it makes the following five findings:

(i) the taking will be incidental;

(ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;

(iii) the applicant will ensure that adequate funding for the plan will be provided;

(iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and

(v) the measures, if any, [otherwise required by the Secretary] will be met.

16 U.S.C. § 1539(a)(2)(B).

         The ESA also requires federal agencies to insure that any action they "authorize[], fund[], or carr[y] out . . . is not likely to jeopardize the continued existence of any endangered species . . . or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2). If agency action "may affect listed species or critical habitat," the agency must consult with the Service. 50 C.F.R. § 402.14(a). Consultation ends with the issuance of a Biological Opinion, 50 C.F.R. § 402.14(l), which examines whether the action will jeopardize the listed species or destroy or adversely modify its habitat as well as "those reasonable and prudent measures . . . necessary or appropriate to minimize such impact," 16 U.S.C. § 1536(b)(4).

         Although Union Neighbors brings challenges under NEPA and the ESA, the Service's obligations are not identical under the two statutory schemes. NEPA's "mandate to . . . agencies is essentially procedural," Vt. Yankee, 435 U.S. at 558, in this case requiring the Service to consider reasonable alternatives to the proposed action, 42 U.S.C. § 4332(C)(iii); 40 C.F.R. § 1502.14. The ESA provisions at issue required the Service to make substantive findings. See Gerber v. Norton, 294 F.3d 173, 184-85 (D.C. Cir. 2002); see also 16 U.S.C. § 1539(a)(2)(B). Because the standards are not identical, a failure to comply with one statute does not necessarily result in a failure to comply with the other.

         B.

         The Indiana bat is a mouse-eared bat with habitats throughout the Eastern and Midwestern United States. During the winter, Indiana bats hibernate underground.^[2]Although the largest population of hibernating Indiana bats is present in Kentucky, Missouri, and Indiana, large colonies have been found in abandoned underground mines in Illinois, Ohio, New Jersey, and New York. During the spring, Indiana bats migrate to their summer habitats. For the Indiana bat, the "core . . . summer range includes southern Iowa, northern Missouri, northern Illinois, northern Indiana, southern Michigan, and western Ohio." J.A. 254. Within Ohio, the Service has documented evidence of Indiana bat colonies in twenty-five counties. These summer ranges provide roosts for pregnant Indiana bats, which form colonies of 25 to 100 bats, with each bat producing one pup. The bats generally migrate to winter sites in late August.

         Indiana bats were first listed as in danger of extinction in 1967 under the Endangered Species Preservation Act of 1966, and were listed as endangered under the ESA in 1973 following the law's enactment. The Indiana bat recovery plan was first published in 1983 and later updated in 1999 and 2007. Although the overall Indiana bat population declined from 1965 to 2001, the trend reversed from 2001 through 2011, with the population increasing from 328,526 in 2001 to 424,708 in 2011. The Midwest Recovery Unit,^[3] which includes Ohio, contains a population of approximately 305,297 Indiana bats. Despite these gains, several factors threaten the Indiana bat population, "including the loss and degradation of suitable hibernacula; human disturbance during hibernation; pesticides; . . . the loss, fragmentation, and degradation of forested habitat," J.A. 248; and white nose syndrome, a lethal fungus, id. at 249, 641. Wind farms pose a potential threat to bats generally, either through collisions with the turbines or as a result of decompression sickness caused by pressure changes around rotating turbine blades. However, as of April 2013, only five known Indiana bat deaths have been associated with wind farms.

         C.

         Buckeye seeks to build and operate a commercial wind energy facility in Champaign County, Ohio. The proposed facility would include up to 100 wind turbines, each with a capacity of 1.6 to 2.5 Megawatts ("MW"), with a total generating capacity of approximately 250 MW for the facility. Necessary construction and access infrastructure would be built as well. The site for the facility is a predominantly agricultural and rural area where Indiana bats maintain a presence during the summer maternity season and presumably traverse during spring and fall migrations to and from their hibernacula.^[4]

         In 2007, Buckeye began consulting with the Service and the Ohio Department of Natural Resources Division of Wildlife to determine the impact that its project would have on the local wildlife populations. After Buckeye consulted with the Service for several years and provided a number of pre-construction field studies, on January 29, 2010, the Service issued a notice of intent to initiate a scoping^[5] period on the project and solicited public comments. Public scoping began on May 26, 2010, and the Service again solicited public comments regarding its intent to prepare a draft EIS and develop a Habitat Conservation Plan ("HCP" or "Conservation Plan") addressing the impact of Buckeye's proposed project. 75 Fed. Reg. 29575 (May 26, 2010); see also 40 C.F.R. § 1506.6(b) (requiring "public notice of NEPA-related hearings, public meetings, and the availability of environmental documents"). The Service worked with Buckeye to draft the HCP, and Buckeye submitted a completed application for its Incidental Take Permit ("ITP" or "Permit") in February 2012.

          On June 29, 2012, the Service issued a Draft EIS and Draft HCP for Buckeye's proposal and solicited public comments. The Service issued a Final EIS and Final HCP on Friday, April 18, 2013, and solicited public comments before a final decision on the permit. In the Final EIS, the Service identified the issuance of the ITP as the proposed government action. The Service also explained that the five "purposes for" the ITP and Final EIS were to: (1) "[r]espond to Buckeye Wind's application for an ITP for the . . . Indiana bat to related Project activities that have the potential to result in take . . ."; (2) "[p]rotect, conserve and enhance the Indiana bat and its habitat . . ."; (3) "[p]rovide a means and take steps to conserve the ecosystems depended on by the Indiana bat"; (4) "[e]nsure the long-term survival of the Indiana bat through protection and management of the species and its habitat"; and (5) "[e]nsure compliance with the ESA, NEPA, and other applicable Federal laws and regulations." J.A. 175. Because of the potential for commercial wind facilities to take a high number of bats, the Service identified "a need to ensure that take of Indiana bats is avoided and minimized to the maximum extent practicable and to ensure that the impact of any remaining take is fully mitigated" and to "protect the habitat of Indiana bats." J.A. 176. In furtherance of these objectives, the Service identified three options it could take under the ESA: 1) issue the ITP conditioned upon implementation of the HCP; 2) issue the ITP conditioned upon implementation of the HCP and other measures; or 3) deny the application for the ITP. The Service proposed issuing the Permit subject to Buckeye's Conservation Plan.

         Buckeye's Conservation Plan proposes numerous steps to reduce impacts on the Indiana bat and its habitat, as well as impacts to other non-listed bats and birds. The HCP first attempts to minimize its impact on Indiana bats through the Action and Project Areas - those areas that could be affected by the issuance of the Permit - and the locations of individual turbines. Specifically, the Conservation Plan moves the Action Area to a location 8 km (5 miles) away from a 2008 discovery of Indiana bats. Additionally, turbines are sited in already-developed lands where turbines would pose a reduced risk to the bats, and no turbine is sited within 2.9 km of known ...