From the very first day of my legal career, clients have asked me some variation of this question: “Why can’t we just prepare a shorter Environmental Assessment (EA) or even issue a Categorical Exclusion (no analysis at all) instead of doing a full Environmental Impact Statement (EIS) for our project?”
The answer is almost always the same: “Agencies comply with NEPA by preparing full EISs only in rare instances. You can do something less than an EIS here depending on what risk you wish to take.”
As we found out this week in a remarkable decision, Shearwater v. Ashe, et al., (No. 14-CV-02830-LHK), even an agency like the U.S. Fish and Wildlife Service (FWS) can fall victim to ignoring obvious NEPA compliance risks when it believes its mission objectives rise above legal requirements. Here, that mission objective was the current Administration’s promotion of wind and other renewable energy development. Yet as the court concluded, “While promoting renewable energy projects may well be a worthy goal, it is no substitute for the [agency’s] obligations to comply with NEPA and to conduct a studied review and response to concerns about the environmental implications of major agency action.”
At issue here was the FWS’ 2013 rulemaking to increase the maximum duration from five to thirty years of programmatic permits under the Bald and Golden Eagle Protection Act to “take” bald or golden eagles incident to otherwise lawful activities. (These species are no longer listed under the Endangered Species Act.) Under FWS regulations, a “programmatic take” refers to cases of potential harm to eagles that is “recurring” and “occurs over the long term.”
When FWS first issued these regulations in 2009, a programmatic permit covered a five-year period. At the conclusion of such time, an evaluation would be made whether the permit should be modified based on an assessment whether the number of “takes” allowed under the permit were occurring as anticipated and if renewal of the permit would be “compatible with the preservation of the bald and golden eagle.”
However, even just six short years ago, it seemed that the FWS did not contemplate the potential growth of the domestic wind power industry. A review of the 2009 regulations and NEPA analysis indicated that the agency was mostly concerned with short-term impacts or truly incidental takes of eagles. Fast forward a few years, and both the wind industry and the Obama Administration came to realize that a five-year permit didn’t work all that well for a proposed wind farm with an expected 20-30 year life span. Thus, the FWS proposed in 2012 to extend the duration of programmatic permits to 30 years, specifically to “facilitate the development of renewable energy” and related projects.
Who could be against that? The agency acted to promote renewable energy (a key objective in the Administration’s climate initiative). And the change to the maximum term did not eliminate the requirement for ongoing monitoring of the effectiveness of mitigation measures, reviews by FWS and operators every five years, or the FWS’ ability to modify or revoke the permit before the end of its term. Indeed, it is due to this residual uncertainty that few developers have applied for 30-year permits, and only one project has received such a permit.
While the U.S. District Court for the Northern District of California implied its overall displeasure with the rule, ultimately the court found fault only with how FWS discharged its procedural duties under NEPA. Here, FWS issued the 30-year rule without preparing either an EA or an EIS because it maintained the action was purely “administrative” in nature. FWS instead issued a categorical exclusion – akin to what it might do for relocating its file room. Categorical exclusions are appropriate for actions with which the agency is readily familiar and knows through its experience not to have significant environmental effects.
The agency’s strategy was best summarized by its Director, Dan Ashe, who according to the administrative record, told his team that he believed a challenge by environmental groups was unlikely. Moreover, the Director flatly instructed staff: “Don’t do more NEPA. Don’t do an EA, they will only want an EIS.” As they say, don’t believe me, it’s all there in the record.
Meanwhile, numerous sources even within FWS and other Interior agencies created an awful administrative record for defending the rule. Federal District Court Judge Lucy Koh does a thorough and truly embarrassing summary of the agency’s own administrative record demonstrating objections from the National Park Service (“[t]he proposed rule appears to designate 30 years based on the lifecycle of industry development rather than the life history of the species under protection”), many national conservation and scientific organizations, and Indian tribes. The record included damning FWS staff statements such as “EIS needed” 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.”
In light of this record and a robust and well-documented scientific controversy over whether implementation of a 30-year permit regime could be protective of eagle species, the court had little trouble overturning the agency’s decision to avoid fuller NEPA analysis.
How this decision impacts eagle incidental take rules and wind energy projects remains to be seen. As the Court acknowledged, FWS in 2014 kicked off a new NEPA scoping process in conjunction with revisiting its Eagle Act regulations. The court decision affords enough latitude to FWS to re-adopt a 30-year eagle take permit, perhaps a version that is more palatable to the wind industry and avian enthusiasts alike. This ongoing process likely decreases the odds that the government will appeal to the Ninth Circuit, though that is possible. Yet the remand of the 30-year permit rule ups the ante on the current effort. The agency will now likely take a more balanced approach to NEPA this time around – something it should have done in the first place.