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Keywords

statutesummary judgmentwillcomplianceendangered species act
statutecompliance

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Union Neighbors United, Inc. v. Jewell, 831 F.3d 564, 82 ERC 2089, 425 U.S.App.D.C. 95

Facts

Buckeye Wind, LLC sought to build a wind farm in Ohio, which posed a potential threat to the Indiana bat, an endangered species. To comply with the ESA, Buckeye applied for an ITP and submitted a conservation plan that included measures to minimize impacts on the bats. Union Neighbors challenged the permit, arguing that FWS did not adequately consider alternatives under NEPA and did not make the required findings under the ESA. The court reviewed the case after the district court granted summary judgment in favor of FWS and Buckeye.

Buckeye Wind, LLC sought to build a wind farm in Ohio, which posed a potential threat to the Indiana bat, an endangered species.

Issue

Did the Fish and Wildlife Service comply with the National Environmental Policy Act by considering a reasonable range of alternatives before issuing the incidental take permit, and did it meet the requirements of the Endangered Species Act?

Union Neighbors argues that the Service did not satisfy NEPA's requirement that it consider a reasonable range of alternatives because it failed to include among the alternatives an economically viable plan that would have taken fewer Indiana bats than Buckeye's compliance with the HCP.

Rule

Under NEPA, federal agencies must consider and report on the environmental effects of their proposed actions, including a reasonable range of alternatives. Under the ESA, the FWS must find that the applicant will minimize and mitigate impacts to endangered species to the maximum extent practicable before issuing an ITP.

NEPA requires federal agencies … to consider and report on the environmental effect of their proposed actions.

Analysis

The court determined that FWS failed to consider an economically feasible alternative that would take fewer Indiana bats than Buckeye's proposal, which constituted a failure to consider a reasonable range of alternatives under NEPA. However, the court found that FWS's interpretation of the ESA was reasonable and entitled to deference, concluding that the agency complied with its obligations under that statute.

Viewing the range of alternatives through the lens of its stated goals, the Service failed to consider a reasonable range of alternatives because it did not consider any reasonable alternative that would be economically feasible while taking fewer bats than Buckeye's proposal.

Conclusion

The court affirmed in part and reversed in part the district court's decision, holding that FWS's issuance of the ITP was arbitrary and capricious due to its failure to consider a reasonable range of alternatives under NEPA, but upheld FWS's compliance with the ESA.

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

Who won?

The prevailing party was the Fish and Wildlife Service regarding the ESA claims, as the court upheld its interpretation and findings under that statute. However, the court ruled against FWS on the NEPA claims, indicating that the agency did not adequately consider alternatives.

The court upheld FWS's interpretation of the ESA and affirmed that the agency complied with its obligations under that statute.

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