Public Employees for Environmental Responsibility v. Hopper
424 U.S. App. D.C. 11, 46 Envtl. L. Rep. (Envtl. Law Inst.) 20119, 827 F.3d 1077 (2016)
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Rule of Law:
Under the National Environmental Policy Act (NEPA), federal agencies must take a "hard look" at all significant environmental impacts, including foreseeable consequences, using adequate data that is not deemed insufficient by the agency's own experts. Under the Endangered Species Act (ESA), if an agency reopens its administrative record, even on remand, to conduct a new analysis for an incidental take statement, it must consider new submissions from affected parties.
Facts:
- Cape Wind Energy Project proposed building 130 wind turbine generators in the Horseshoe Shoal region of Nantucket Sound, Massachusetts, with an estimated lifespan of twenty years, to help meet Massachusetts's renewable energy requirements.
- In 2001, Cape Wind first sought government approval from the United States Army Corps of Engineers for its project.
- Following the Energy Policy Act of 2005, primary regulatory authority over offshore renewable energy projects transferred to the Bureau of Ocean Energy Management (Bureau).
- Between 2006 and 2007, Bureau geologist Richard Clingan repeatedly emailed concerns that Cape Wind's geophysical data for seafloor and subsurface hazards was insufficient and did not conform to the Bureau's 'Guidance Notes on Site Investigations for Offshore Renewable Energy Projects'.
- The Bureau granted Cape Wind a regulatory departure, allowing it to delay submission of required geological surveys until before construction, rather than with its construction plan, to provide more time for securing financing.
- The Fish and Wildlife Service (Service) estimated that the project's turbines would kill 80-100 endangered roseate terns and ten threatened piping plovers over the project's lifespan.
- The Service initially recommended 'feathering' (temporarily shutting down) the turbines during poor visibility to reduce bird collisions, but Cape Wind and the Bureau objected due to concerns about economic costs, project scope modification, and impact on revenues and financing.
- The Service subsequently excluded the feathering measure from its final incidental take statement, citing economic infeasibility based on these objections.
Procedural Posture:
- Cape Wind Energy Project filed a permit application with the United States Army Corps of Engineers in 2001.
- The Army Corps of Engineers issued a draft environmental impact statement for the project in 2004.
- The Bureau of Ocean Energy Management (BOEM) assumed authority and issued its own draft and final environmental impact statements in 2008 and 2009, respectively.
- Plaintiffs, including Public Employees for Environmental Responsibility (PEER) and Alliance to Protect Nantucket Sound, et al., sued federal agencies in the United States District Court for the District of Columbia (No. 1:10-cv-01073 and consolidated cases), challenging the project's regulatory approval under various federal statutes.
- On March 14, 2014, the district court rejected most of plaintiffs' claims, granted partial summary judgment to the government agencies, but remanded the Endangered Species Act claim to the Fish and Wildlife Service (Service) for an independent determination regarding the 'feathering' mitigation measure.
- In July 2014, on remand, the Service filed a letter with the district court, stating it had independently evaluated the feathering measure based on existing 2008 information and decided against it, without considering new submissions from plaintiffs.
- On November 18, 2014, the district court rejected plaintiffs' remaining claims (including challenges to the Service's remand action), granted summary judgment, and dismissed the entire case, finding the Service had clarified its 2008 determination and was not required to consider new materials.
- Plaintiffs appealed the district court's grants of summary judgment to the United States Court of Appeals for the District of Columbia Circuit.
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Issue:
1. Does the Bureau of Ocean Energy Management (Bureau) violate the National Environmental Policy Act (NEPA) by issuing an environmental impact statement (EIS) for an offshore wind farm project that relies on geological and geophysical survey data deemed insufficient by its own experts, without adequately assessing the seafloor's ability to support large structures? 2. Did the Bureau violate its own regulations or other federal statutes by granting a regulatory departure to Cape Wind, allowing it to delay the submission of required geological surveys until before construction, rather than with its construction plan approval? 3. Did the Coast Guard violate the Maritime Transportation Act by specifying terms and conditions for a renewable energy lease that included forward-looking reporting and research requirements for navigational safety, or by failing to issue terms for alternative project sites that were later deemed unfeasible? 4. Did the Fish and Wildlife Service (Service) violate the Endangered Species Act (ESA) by disregarding new scientific and economic data submitted by plaintiffs when, on remand, it reopened the administrative record to conduct a new independent economic analysis of a proposed mitigation measure for endangered species?
Opinions:
Majority - senior circuit judge randolph
1. Yes, the Bureau of Ocean Energy Management violated the National Environmental Policy Act by issuing an environmental impact statement for the Cape Wind project that failed to adequately assess seafloor and subsurface hazards. NEPA requires agencies to take a "hard look" at all significant environmental impacts and the foreseeable consequences of their actions, which includes the effects of granting a lease for construction. The Bureau failed this duty by relying solely on geological data that its own experts had roundly criticized as insufficient to determine if the seafloor could support wind turbines. The court rejected the Bureau's attempt to distinguish between an initial lease decision and subsequent construction consequences, asserting that the EIS must consider the predictable effects of its actions. While ongoing monitoring can be appropriate, it does not excuse the initial data gathering obligation. 2. No, the Bureau did not violate its own regulations or other federal statutes by granting Cape Wind a regulatory departure to delay the submission of geological surveys. The court found that the relevant regulations and statutes (e.g., Shelf Lands Act, National Historic Preservation Act, NEPA) require such data before construction begins, but do not impose a specific timing requirement for its submission with the construction plan. The departure delayed the surveys but still required them before seafloor disturbance, which satisfies the statutory requirements. Furthermore, the court found the Bureau's 2010 letter, which offered to approve a departure contingent on the construction plan being 'otherwise satisfactory' and explained the rationale for facilitating financing, to be a sufficient 'written departure' under Bureau regulations, rejecting the plaintiffs' overly formalistic interpretation. 3. No, the Coast Guard did not violate the Maritime Transportation Act. The court deferred to the Coast Guard's expertise in maritime safety, finding its terms—which included immediate conditions, ongoing reporting, and future research requirements—to be "reasonable" and sufficient to provide for navigational safety, especially given that the Act contemplates informational gaps and future monitoring. The court also determined that any error in failing to issue terms for NEPA alternatives was harmless. The Bureau had already concluded that these alternative sites were technically infeasible, economically unviable, or would cause greater environmental harm, rendering additional navigational safety terms for them pointless. 4. Yes, the Fish and Wildlife Service violated the Endangered Species Act by disregarding new scientific and economic data submitted by plaintiffs. After the district court remanded the ESA claim for an independent determination on the 'feathering' mitigation measure, the Service chose to conduct a new analysis in 2014, consulting its in-house economist. Although the economist reviewed 2008 data, the Service's reliance on this new 2014 analysis, conducted 'in response' to the remand, effectively reopened the administrative record. Once the record was reopened, the Service was obligated to consider new submissions from the plaintiffs, which it failed to do. This failure rendered its decision arbitrary and capricious.
Analysis:
This case significantly reinforces the "hard look" doctrine under NEPA, emphasizing that agencies cannot defer critical environmental assessments until after a major federal action, like issuing a lease, if the consequences are foreseeable. It also clarifies that an agency, even on remand, cannot undertake new analysis without reopening the administrative record to new, relevant submissions. The ruling highlights the ongoing tension between facilitating renewable energy projects and ensuring robust environmental protection, particularly for novel offshore developments. While showing deference to agency expertise (e.g., Coast Guard), the court maintains a firm stance on procedural obligations under NEPA and ESA, ensuring that environmental impact statements and mitigation efforts are based on the best available and most current data.
