Union Neighbors United, Inc. v. Sally Jewell
2016 U.S. App. LEXIS 14377, 82 ERC (BNA) 2089, 831 F.3d 564 (2016)
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Rule of Law:
Under the National Environmental Policy Act (NEPA), a federal agency fails to consider a reasonable range of alternatives when it neglects to analyze an economically feasible alternative that would result in less environmental harm than the applicant's proposed action.
Facts:
- Buckeye Wind, LLC ('Buckeye') sought to build and operate a commercial wind energy facility with up to 100 turbines in Champaign County, Ohio.
- The proposed site is a summer habitat for the Indiana bat, a federally listed endangered species, and the turbines posed a lethal threat to the bats.
- To obtain an Incidental Take Permit (ITP) under the Endangered Species Act (ESA), Buckeye submitted a Habitat Conservation Plan (HCP) to the U.S. Fish and Wildlife Service ('the Service').
- Buckeye's HCP proposed operational restrictions, including turbine feathering and increased 'cut-in speeds' up to 6.0 m/s, which was estimated to result in the death ('take') of 5.2 Indiana bats per year.
- As part of its NEPA review, the Service analyzed Buckeye's proposal, a 'No Action' alternative, a 'Minimal Alternative' that would take 12 bats per year, and a 'Max Alternative' that would take zero bats but was considered economically infeasible.
- Union Neighbors United, Inc. ('Union Neighbors'), a citizens' group, commented on the draft Environmental Impact Statement (EIS), suggesting the Service analyze an intermediate alternative with a higher cut-in speed of 6.5 m/s.
- This proposed 6.5 m/s alternative was expected to take fewer bats than Buckeye's proposal while being more economically viable than the 'Max Alternative', but the Service declined to analyze it.
Procedural Posture:
- The U.S. Fish and Wildlife Service issued an Incidental Take Permit to Buckeye Wind, LLC.
- Union Neighbors United, Inc. filed a complaint in the U.S. District Court for the District of Columbia against the Secretary of the Interior and other federal officials ('Federal Appellees'), challenging the permit under NEPA and the ESA.
- Buckeye Wind, LLC intervened in the lawsuit to defend the permit.
- The parties filed cross-motions for summary judgment in the district court.
- The District Court denied Union Neighbors' motion and granted summary judgment for the Federal Appellees and Buckeye, upholding the permit.
- Union Neighbors, as appellant, appealed the District Court's judgment to the U.S. Court of Appeals for the District of Columbia Circuit.
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Issue:
Does a federal agency violate the National Environmental Policy Act (NEPA) by failing to analyze an economically feasible alternative that meets the project's purpose while causing less environmental harm than both the applicant's proposal and other considered alternatives?
Opinions:
Majority - Wilkins, Circuit Judge
Yes, a federal agency violates NEPA by failing to consider a reasonable range of alternatives when it does not analyze an economically feasible, environmentally superior alternative to the proposed action. The court found that the Service's selection of alternatives was unreasonable because it failed to consider any intermediate option that was both economically feasible and would take fewer bats than Buckeye’s proposal. The Service's choices—the proposal (5.2 bats taken), a worse option (12 bats taken), and an economically infeasible ideal (0 bats taken)—did not provide a 'clear basis for choice' as NEPA requires. The Service's justification for not analyzing the 6.5 m/s alternative—that it would have to analyze an 'infinite array' of options—was unpersuasive, as analyzing a single 'realistic mid-range alternative' would have sufficed. However, the court affirmed the Service's actions under the Endangered Species Act (ESA). It deferred to the Service's interpretations that 'impacts' of a taking refer to the effect on the species population as a whole, not just the number of individuals killed, and that 'minimize and mitigate to the maximum extent practicable' is a single, combined standard. Because the Service found that Buckeye's combined minimization and mitigation measures fully offset the impact of the taking, it met the ESA's requirements.
Analysis:
This decision reinforces that the evaluation of reasonable alternatives is the 'heart' of the NEPA process. It clarifies that an agency cannot satisfy its procedural duties by merely bookending a project proposal with unrealistic or environmentally inferior options. The ruling empowers public interest groups to compel agencies to give serious consideration to 'mid-range' alternatives that are both environmentally preferable and economically viable. This precedent makes it more difficult for agencies to approve a project as proposed without rigorously exploring practical, less-damaging designs.
