This month a federal court in Maine rejected a challenge to a permit issued by the U.S. Army Corps of Engineers (Army Corps) for the Oakfield wind power project. The court determined that the Army Corps did not violate the Endangered Species Act (ESA) or the Bald and Golden Eagle Protection Act (Eagle Protection Act) in issuing the permit. The court’s decision is part of a growing trend of cases concluding that a federal agency’s obligations under the Eagle Protection Act and Migratory Bird Treaty Act are limited where the agency permits or authorizes a private project.
In Protect Our Lakes v. U.S. Army Corps of Engineers, No. 13-cv-402 (D. Me. Feb. 20, 2015), the plaintiffs filed suit against the Army Corps over the issuance of a Clean Water Act Section 404 permit that authorized the Oakfield wind project developer to permanently and temporarily fill in certain wetlands during project construction. The plaintiffs challenged the permit on a number of grounds, but abandoned all but their claims under the ESA and Eagle Protection Act during summary judgment. Under the ESA, the plaintiffs argued that the Army Corps improperly relied upon incomplete data to analyze the impact of the project’s construction on Atlantic salmon and did not obtain an incidental take statement in light of the determination that the project was not likely to adversely affect salmon. The court denied relief under both claims, holding that the ESA required use of the best data available, which can include incomplete data. Op. at 8 (“the best scientific data available standard does not require agencies to have complete information before acting”). The court also held that no incidental take statement is required where an action is not anticipated to result in the take of a listed species. Op. at 9.
The plaintiffs’ Eagle Protection Act claims challenged the Army Corps’ decision to issue a permit without first securing or requiring the project developer to secure an incidental take permit given the project’s potential for taking a bald eagle. The court rejected this argument. The Eagle Protection Act, like the Migratory Bird Treaty Act, imposes penalties on those who unlawfully take protected species. Generally, a take involves a purposeful action directed toward a protected species rather than an attenuated action such as issuing a permit. Given the purpose and structure of the Eagle Protection Act, the court found that the Army Corps, whose involvement in the project was limited to permitting, could not violate the Act. The court held that the plaintiffs “cannot pursue an individual claim based on an alleged ‘violation’ of the BGEPA [Eagle Protection Act] by the Corps when the Corps merely acts pursuant to its authority under section 404 of the CWA to issue a permit for dredging and fill activity.” Op. at 12 (citation and internal quotation marks omitted).
The court’s decision is instructive and is consistent with a trend of cases concluding that federal agencies are not obligated to obtain permits under the Eagle Protection Act or the Migratory Bird Treaty Act when issuing permits or otherwise approving private projects. See, e.g., Pub. Employees for Envtl. Responsibility v. Beaudreau, 25 F. Supp. 3d 67, 117 (D.C. Cir. June 11, 2014) (“the Court finds that the BOEM did not violate the Migratory Bird Treaty Act by merely approving a project that, if ultimately constructed, might result in the taking of migratory birds”); Friends of Boundary Mountains v. U.S. Army Corps of Engineers, 24 F. Supp. 3d 105, 116 (D. Me. 2014). This trend is a positive development for renewable and conventional energy project developers, as it reduces the number of hoops a federal agency must jump through before granting a permit or other federal approval.
Additionally, the consistency of these court decisions reduces the potential litigation risk faced by project developers. Recently, project opponents have invoked the Eagle Protection Act and Migratory Bird Treaty Act to challenge projects that are not operational and have not resulted in the take of any protected bird species. Neither of these acts contains a citizen suit provision, so plaintiffs have stated claims under the Administrative Procedure Act instead. Given this artful pleading, such claims presented unique challenges for defendants because few courts had interpreted these acts in the context of federal authorization of a private action. Now courts in California, Maine, and the District of Columbia have all held that these acts do not apply in the manner advocated by plaintiffs. None of the recent decisions have found otherwise. This pattern suggests that this trend is likely to continue.