On August 11, 2015, the U.S. District Court for the Northern District of California set aside a final rule published by the U.S. Fish and Wildlife Service (USFWS) on December 9, 2013 that sanctioned 30-year programmatic “take” permits under the Bald and Golden Eagle Protection Act (BGEPA) (the Eagle Permit Case).
In 2009, the USFWS published regulations under BGEPA that authorized the agency to issue limited incidental “take” permits allowing individuals and entities to “take” bald or golden eagles incident to otherwise lawful activities. While the 2009 rule authorized the USFWS to issue permits for “individual instances of take” or for “programmatic take,” the 2009 rule only authorized such permits for a maximum term of five years. Proponents of renewable energy development, including wind energy development, argued that a five-year permit failed to provide developers and financiers the certainty necessary to facilitate investment in large energy infrastructure projects with inherently long-term projected lifetimes (e.g., 20 to 30 years). Thus, in 2012, the USFWS published a proposed rule to extend the programmatic take permits (only) to a term of 30 years, and on December 9, 2013, the USFWS finalized this rule, specifically citing its relevance to renewable energy projects. “Programmatic take” of eagles is defined as “take that is recurring, is not caused solely by indirect effects, and that occurs over the long term or in a location or locations that cannot be specifically identified.”
Shortly after publication of the 2013 rule, the American Bird Conservancy and individual plaintiffs filed suit against the USFWS asserting that the USFWS failed to comply with the National Environmental Policy Act (NEPA) in its consideration of the new rule and the consultation requirements of the Endangered Species Act. In its recent decision, the U.S. District Court for the Northern District of California agreed with the plaintiffs, focusing on the USFWS’s failure to comply with NEPA. NEPA, a procedural statute that does not mandate particular results, does require that federal agencies take a “hard look” at the environmental consequences of its actions. NEPA requirements are generally met in one of three ways: through a categorical exclusion (the least intensive form of review), through preparation of an environmental assessment (EA), or through preparation of an environmental impact statement (EIS) (the most intensive form of analysis).
In the Eagle Permit Case, plaintiffs alleged (and the court agreed) that the USFWS violated NEPA because it relied on a categorical exclusion under NEPA — asserting that its decision to promulgate the 30-year rule was only “administrative” in nature. Citing damaging statements made by the USFWS in the administrative record, the court held that the USFWS should have prepared either an EA or an EIS to analyze the potential impacts of issuing 30-year programmatic take permits. The administrative record included comments from staff that “issuance of long-term, industrial scale programmatic permits for lethal take was outside the scope of the 2009 [EA],” which “did not envision or address numerous prospective permits authorizing activities causing on-going and sustained eagle mortality — such as wind development;” and “[o]nce again, we find ourselves having taken sloppy action that we will have to do over instead of doing things the way they should have been done to begin with.”
Without rendering judgment on the legality of 30-year programmatic take permits, the court set aside the rule and remanded it with direction to the USFWS to conduct the appropriate level of environmental review — leaving it to the agency to determine whether to develop an EA or an EIS. Thus, a 30-year programmatic term permit under BGEPA is not currently available to project proponents. While the USFWS has not issued a 30-year programmatic term permit since its 2013 rule, several project proponents have submitted applications for a 30-year programmatic permit and are fairly far along in the application process. Interestingly, in reviewing the adequacy of the applications for long-term programmatic permits (and in each instance a proposed Eagle Conservation Plan (ECP)), the USFWS is preparing project-specific EISs. Presumably these project proponents have expended significant resources in applying for 30-year permits and preparing the ECPs, respectively. With the district court’s recent decisions, however, the USFWS currently has no regulatory basis to issue a 30-year programmatic eagle take permit.
That said, concurrent with the Eagle Permit Case litigation, the USFWS (clearly recognizing the deficiency in its environmental analysis) began reconsideration of its BGEPA regulations and initiated a new NEPA scoping process on June 23, 2014. The USFWS has not stated whether it will prepare an EA or an EIS. Importantly, the USFWS has also announced its intention to consider a first-ever incidental take permitting program under the Migratory Bird Treaty Act (MBTA), also at the behest of wind energy developers. For this proposed MBTA program, the USFWS is preparing an EIS, and may do likewise to analyze any environmental impacts of thirty-year programmatic take permits under BGEPA. Whether completion of a full-fledged environmental analysis will result once again in the issuance of 30-year BGEPA permits may depend on plaintiffs’ appetite for a substantive, rather than procedural, challenge.