Public Employees for Environmental Responsibility v. Hopper

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 11, 2016 Decided July 5, 2016
No. 14-5301
PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY,
ET AL.,
APPELLANTS
TOWN OF BARNSTABLE, MASSACHUSETTS, ET AL.,
APPELLEES
v.
ABIGAIL ROSS HOPPER, ACTING DIRECTOR, U.S. BUREAU OF
OCEAN ENERGY MANAGEMENT, ET AL.,
APPELLEES
Consolidated with 14-5303
Appeals from the United States District Court
for the District of Columbia
(No. 1:10-cv-01073)
(No. 1:10-cv-01067)
(No. 1:10-cv-01079)
(No. 1:10-cv-01238)
Benjamin S. Sharp argued the cause for appellant Alliance
to Protect Nantucket Sound. With him on the briefs were
2
Donald C. Baur, Jennifer A. MacLean, W. Eric Pilsk, and
Charles Alan Spitulnik.
Eric R. Glitzenstein argued the cause for appellants Public
Employees for Environmental Responsibility, et al. With him
on the briefs was William S. Eubanks II.
Todd D. Lochner was on the brief for amici curiae Cape
Cod Marine Trades Association, Inc. and Massachusetts
Fishermen’s Partnership, Inc. in support of appellants.
J. David Gunter II, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
were John C. Cruden, Assistant Attorney General, and Luther L.
Hajek, Attorney.
Christopher H. Marraro argued the cause for intervenor
Cape Wind Associates, LLC. With him on the brief was
Geraldine E. Edens.
Before: MILLETT and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: The Cape Wind Energy
Project is a proposal to generate electricity from windmills off
the coast of Massachusetts. It calls for the “construction,
operation and maintenance . . . of 130 wind turbine generators”
in the Horseshoe Shoal region of Nantucket Sound. The
turbines have an estimated life-span of twenty years, and during
that time they are expected to generate up to three-quarters of
the electricity needs for Cape Cod and the surrounding islands.
The project’s “underlying purpose” is to help the region achieve
3
Massachusetts’s renewable energy requirements, which
“mandate that a certain amount of electricity come from
renewable energy sources, such as wind.” See MASS. GEN.
LAWS ch. 25A, § 11F.
Offshore energy providers like Cape Wind must comply
with a slew of federal statutes designed to protect the
environment, promote public safety, and preserve historic and
archeological resources on the outer continental shelf.1 They
must also go through “several regulatory and administrative
procedures” to satisfy regulations promulgated under these
statutes. Pub. Emps. for Envtl. Responsibility v. Beaudreau, 25
F. Supp. 3d 67, 85 (D.D.C. 2014), appeal dismissed sub nom.
Pub. Emps. for Envtl. Responsibility v. Cruickshank, No.
14-5117, 2014 WL 3014869 (D.C. Cir. June 11, 2014).
Cape Wind first sought government approval for its project
in 2001 when it filed a permit application with the United States
Army Corps of Engineers, the federal agency then regulating
outer continental shelf wind energy projects. See All. to Protect
Nantucket Sound, Inc. v. U.S. Dep’t of Army, 398 F.3d 105, 107
(1st Cir. 2005); 33 U.S.C. § 403. Four years later, the Energy
Policy Act of 2005, Pub. L. No. 109-58, § 388(a), 119 Stat. 594,
744, amended the Outer Continental Shelf Lands Act, see 43
U.S.C. § 1337(p), and transferred primary regulatory authority
1
“Outer Continental Shelf . . . means all submerged lands lying
seaward and outside of the area of lands beneath navigable waters . . .
whose subsoil and seabed appertain to the United States and are
subject to its jurisdiction and control.” 30 C.F.R. § 585.112; see 43
U.S.C. § 1301(a) (defining “lands beneath navigable waters”). The
Outer Continental Shelf Lands Act, 43 U.S.C. § 1333(a), grants the
United States jurisdiction over this area. See United Ass’n of
Journeymen & Apprentices of Plumbing & Pipe Fitting Indus.,
AFL-CIO v. Reno, 73 F.3d 1134, 1135 (D.C. Cir. 1996).
4
over offshore renewable energy projects to the Bureau of Ocean
Energy Management,2 an agency within the Department of the
Interior. See id. § 1337(p)(1)(C); 76 Fed. Reg. 64,432, 64,434,
64,459 (Oct. 18, 2011). Since then, this Bureau has promulgated
regulations governing the development of “renewable” energy
production on the outer continental shelf. See 30 C.F.R.
§ 585.100 et seq. (“Renewable Energy and Alternate Uses of
Existing Facilities on the Outer Continental Shelf”). The
regulations require the Bureau both to collect information about
projects and to “consult with relevant [f]ederal agencies,”
including inter alia the United States Coast Guard and the Fish
and Wildlife Service. Id. § 585.203; see id. § 585.600.
Although Cape Wind submitted its application before the
regulations issued, the Bureau decided that the regulations
would nonetheless “be applicable as the Cape Wind Energy
Project moves forward through the construction, operation, and
decommissioning phases.”
Plaintiffs are the Alliance to Protect Nantucket Sound,
Public Employees for Environmental Responsibility, and others.
They claim that the government violated half a dozen federal
statutes in allowing Cape Wind’s project to move through the
regulatory approval process. See Pub. Emps., 25 F. Supp. 3d at
77-79. The Bureau allegedly violated the National
Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C), the
Shelf Lands Act, 43 U.S.C. § 1337(p), the National Historic
Preservation Act, 54 U.S.C. § 306108, and the Migratory Bird
Treaty Act, 16 U.S.C. § 703(a). The Bureau and the United
States Coast Guard allegedly violated the Coast Guard and
Maritime Transportation Act, Pub. L. No. 109-241, § 414, 120
2
The Bureau replaced the Minerals Management Service in
October 2011. See Native Vill. of Point Hope v. Salazar, 680 F.3d
1123, 1126 n.2 (9th Cir. 2012).
5
Stat. 516, 540 (2006). The Fish and Wildlife Service allegedly
violated the Endangered Species Act, 16 U.S.C. § 1538.
On March 14, 2014, the district court rejected most of these
claims and granted partial summary judgment to the government
agencies. See Pub. Emps., 25 F. Supp. 3d at 130. On November
18, 2014, the court rejected plaintiffs’ remaining claims, granted
summary judgment, and dismissed the case. We “review de
novo the district court’s grant[s] of summary judgment,” and
“apply the arbitrary and capricious standard of the
Administrative Procedure Act, 5 U.S.C. [§ 706]” to determine
whether the government complied with federal law. WildEarth
Guardians v. Jewell, 738 F.3d 298, 308 (D.C. Cir. 2013); see
CTIA-Wireless Ass’n v. FCC, 466 F.3d 105, 113 (D.C. Cir.
2006); Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 13
(D.C. Cir. 2005); Hill v. Norton, 275 F.3d 98, 102 (D.C. Cir.
2001), superseded by statute on other grounds, Migratory Bird
Treaty Reform Act, Pub. L. No. 108-447, § 143, 118 Stat. 2809,
3071-72 (2004); Indep. Petroleum Ass’n of Am. v. Babbitt, 92
F.3d 1248, 1257 (D.C. Cir. 1996).
I
Plaintiffs challenge the Bureau’s decision to issue the lease
for Cape Wind’s project without first obtaining “sufficient site-
specific data on seafloor and subsurface hazards” in Nantucket
Sound. Alliance Br. at 26-27. They argue that the Bureau
violated the National Environmental Policy Act, 42 U.S.C.
§ 4332, by relying on inadequate “geophysical and
geotechnical” surveys. Alliance Br. at 21. We agree.
Under NEPA, an agency must “consider every significant
aspect of the environmental impact of a proposed action.” Balt.
Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983); see 42
U.S.C. § 4332(2). The agency must then “inform the public that
6
it has indeed considered environmental concerns in its
decisionmaking process.” 462 U.S. at 97. In other words,
agencies must “take a ‘hard look’ at [the] environmental
consequences” of their actions, and “provide for broad
dissemination of relevant environmental information.”
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350
(1989) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21
(1976)). This “hard look” requirement applies to the
“authorization or permitting of private actions” like the Cape
Wind Project. Sierra Club v. U.S. Army Corps of Engineers,
803 F.3d 31, 36-37 (D.C. Cir. 2015).
The principal way the government informs the public of its
decisionmaking process is by publishing environmental impact
statements. See 42 U.S.C. § 4332(2)(C). Agencies must
“prepare and make publicly available” these statements for all
“major [f]ederal actions significantly affecting the quality of the
human environment . . ..” Sierra Club, 803 F.3d at 37. Among
other things, impact statements must describe a proposed
“action’s anticipated direct and indirect environmental effects.”
803 F.3d at 37.
In 2004, the Army Corps of Engineers issued a draft impact
statement for the Cape Wind project. After the Bureau assumed
authority, it reviewed the Corps’s draft statement, “identified
information requirements and/or issue areas that [were]
incomplete,” and announced that it would issue its own impact
statement. See Notice of Intent to Prepare an Environmental
Impact Statement, 71 Fed. Reg. 30,693 (May 30, 2006). The
Bureau published draft and final impact statements in 2008 and
2009, respectively. See 73 Fed. Reg. 3,482 (Jan. 18, 2008); 74
Fed. Reg. 3,034 (Jan. 16, 2009).
Plaintiffs argue that the Bureau’s 2009 impact statement is
arbitrary and capricious because it does not adequately assess
7
the seafloor and subsurface hazards of the Sound.3 They claim
that the statement relies on inadequate geological surveys, which
according to the Bureau’s internal guidance, help determine
whether “the seafloor [is] able to support large structures,” and
whether “important archaeological and prehistoric features [can]
be protected.” In support, plaintiffs refer to a series of internal
Bureau emails describing “the dearth of geophysical data over
the entire area” of the proposed wind farm. For example, in
December 2006, Richard Clingan, the Bureau geologist
overseeing the impact statement’s geophysical data section,
emailed a list of concerns to the Bureau’s “Cape Wind Project
Manager,” Rodney Cluck, including that “[t]here is no
indication that [Cape Wind] ha[s] adequate data to address”
various geological hazards, and that Cape Wind’s surveys “don’t
seem to conform (even loosely) to the ‘Guidance Notes on Site
Investigations for Offshore Renewable Energy Projects’ . . ..”
His emails referred to three surveys conducted for Cape Wind
between 2001 and 2005 that the Bureau concedes were
“insufficient” to “support approval to construct the project . . ..”
Defendants Br. at 41. In June 2007, Clingan repeated his
“geophysical data concerns,” and Rodney Cluck forwarded to
the Bureau’s “NEPA Coordinator” Clingan’s conclusion that
3
Plaintiffs also argue that the 2009 statement is arbitrary and
capricious because its “Oil Spill Response Plan” “ignores the . . . risk
of an oil tanker collision with a turbine or another vessel,” and does
not adequately explain the estimated oil spill response time. See 30
C.F.R. § 254 et seq. Plaintiffs have made markedly different
arguments on this issue, first to the district court and later to this court,
and have therefore forfeited most of those arguments. See Potter v.
District of Columbia, 558 F.3d 542, 549-50 (D.C. Cir. 2009). For
example, in their motion for summary judgment they argued that “8
to 12 hours” is too slow a response time, but in their appellate briefs
they challenged a change in the estimated response time between the
draft and final response plans. To the extent any arguments have
survived, the impact statement comprehensively addresses them.
8
Cape Wind “has not acquired sufficient geophysical data and
information to adequately delineate in detail geologic hazards
and conditions in the vicinity (1000m radius) of even one
proposed turbine location . . ..”
The Bureau downplays the significance of its geologist’s
concerns, attributing them to “a robust internal debate,” and
claiming that there was at least sufficient data “to support [the
Bureau’s] initial decision . . . to offer a lease,” if not to justify
final construction of the windmills. Defendants Br. at 41-42.
The Bureau also disputes whether Clingan actually harbored
such serious concerns, noting that his email “acknowledge[s]
that the data . . . constitute[s] ‘an informative reconnaissance-
level survey of the project area . . ..’” Defendants Br. at 40.4
We do not think the Bureau has “fulfilled its duty to take a
‘hard look’ at the geological and geophysical environment” in
Nantucket Sound. Defendants Br. at 40. NEPA requires federal
agencies to prepare impact statements for all “major [f]ederal
actions significantly affecting the quality of the human
environment.” Sierra Club, 803 F.3d at 37. The Bureau does
not contest that issuing a renewable energy lease constitutes a
major federal action. Compare Pub. Emps., 25 F. Supp. 3d at
126; Alliance Mot. Summ. J. at 80-83, No. 1:10-cv-01067-RBW
(D.D.C. June 14, 2013), ECF No. 283. Therefore, the question
is whether the Bureau “consider[ed] every significant aspect of
the environmental impact” of the project, including the
subsurface environment. Balt. Gas, 462 U.S. at 97. The Bureau
distinguishes between the “initial decision” to issue a lease and
4
The Bureau’s quotation is a bit misleading. Clingan’s full email
says that “[a]t first impression, [Cape Wind] conducted an informative
reconnaissance-level survey of the project area,” but “[u]nfortunately,
[Cape Wind] has not acquired sufficient geophysical data” on
Nantucket Sound. Joint Appendix 1635 (italics added).
9
the consequences of that decision. Defendants Br. at 42. Cape
Wind also points out that the impact statement required
“additional geophysical . . . surveys” once the project was
authorized, and claims these surveys were completed in 2012.
See Cape Wind Intervenor Br. at 6. But there is no evidence the
Bureau relied on any additional surveys in its impact statement,
and NEPA does not allow agencies to slice and dice proposals
in this way. Agencies must take a “hard look” at the
environmental effects of a major federal action “and
consequences of that action.” Robertson, 490 U.S. at 352
(italics added). The impact statement must therefore look
beyond the decision to offer a lease and consider the predictable
consequences of that decision. By relying solely on data so
roundly criticized by its “own experts,” the Bureau failed to
fulfill this duty. W. Watersheds Project v. Kraayenbrink, 632
F.3d 472, 493 (9th Cir. 2011). Of course, an agency need not be
clairvoyant. In some cases it may be appropriate for an impact
statement to provide for ongoing monitoring in order to gather
more data. See Theodore Roosevelt Conservation P’ship v.
Salazar, 616 F.3d 497, 517 (D.C. Cir. 2010). But that does not
excuse the Bureau from its NEPA obligation to gather data
about the seafloor. Without adequate geological surveys, the
Bureau cannot “ensure that the seafloor [will be] able to
support” wind turbines.
The Bureau therefore violated NEPA, but that does not
necessarily mean that the project must be halted or that Cape
Wind must redo the regulatory approval process. See, e.g., Pit
River Tribe v. U.S. Forest Serv., 615 F.3d 1069, 1080-81 (9th
Cir. 2010); Native Vill. of Point Hope v. Salazar, 730 F. Supp.
2d 1009, 1019 (D. Alaska 2010). To decide whether “the
project should be halted pending completion of an [impact
statement],” we must perform a “particularized analysis of the
violations that have occurred,” “the possibilities for relief,” and
“any countervailing considerations of public interest,” including
10
“the social and economic costs of delay . . ..” NRDC v. U.S.
Nuclear Regulatory Comm’n, 606 F.2d 1261, 1272 (D.C. Cir.
1979) (internal quotation marks omitted); see also Jones v. D.C.
Redevelopment Land Agency, 499 F.2d 502, 512-13 (D.C. Cir.
1974). Delaying construction or requiring Cape Wind to redo
the regulatory approval process could be quite costly. The
project has slogged through state and federal courts and agencies
for more than a decade. See, e.g., All. to Protect Nantucket
Sound, Inc. v. U.S. Dep’t of Army, 288 F. Supp. 2d 64 (D. Mass.
2003), aff’d, 398 F.3d 105 (1st Cir. 2005); All. to Protect
Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 858
N.E.2d 294 (Mass. 2006). Meanwhile, Massachusetts’s
renewable energy requirements continue to increase. See MASS.
GEN. LAWS ch. 25A, § 11F. Allowing the project to move
forward could help meet these requirements. On the other hand,
it would be imprudent to allow Cape Wind to begin construction
before it can “ensure that the seafloor [is] able to support” its
facilities. Cape Wind has “no prior experience
developing/operating offshore wind farms,” and the construction
site “lie[s] in the frontier areas of the [outer continental shelf,]
where detailed geological, geophysical, and geotechnical data
and information is generally lacking.” Therefore, we will vacate
the impact statement and require the Bureau to supplement it
with adequate geological surveys before Cape Wind may begin
construction.5 We will not, however, vacate Cape Wind’s lease
or other regulatory approvals based on this NEPA violation.
Plaintiffs argue that Cape Wind’s failure to complete the
surveys dooms the project for another reason. They say that
Bureau regulations require Cape Wind to complete the surveys
5
If the Bureau believes that Cape Wind’s 2012 surveys
adequately address the geological concerns discussed above, it may
refer to them in its revised impact statement. See Cape Wind
Intervenor Br. at 6.
11
before the Bureau can approve Cape Wind’s “Construction and
Operations Plan.” 30 C.F.R. § 585.620. The Bureau concedes
that it would ordinarily require Cape Wind to “submit the results
of” geological surveys with its construction plan, but that the
Bureau granted a regulatory departure to provide Cape Wind
with more time to secure financing. 30 C.F.R. § 585.626; see id.
§ 585.103. Plaintiffs respond that the Bureau “cannot ‘depart’
from or waive [the surveys] because doing so [would] deprive[]
the agency of information required to comply with” NEPA, the
Shelf Lands Act, the National Historic Preservation Act, and 30
C.F.R. § 585.103(b)(2), which requires any departure to
“[p]rotect the environment and the public health and safety to
the same degree as if there were no approved departure.”
Alliance Br. at 37. Alternatively, they claim that even if the
Bureau can grant this departure, the Bureau did not actually do
so because the departure was not in writing. We find neither
argument persuasive.
Bureau regulations require offshore energy providers to
submit “detailed information” with their construction plans to
“assist [the Bureau] in complying with NEPA and other relevant
laws.” 30 C.F.R. § 585.627(a). This includes information about
“geology[] and shallow geological . . . hazards.” Id.
§ 585.627(a)(1). Plaintiffs interpret these regulations to mean
that “those statutes require” energy providers to submit
geological surveys before the Bureau can approve a construction
plan. Alliance Br. at 36. Their interpretation adds a timing
requirement that does not exist in the regulations or the statutes.
Section 585.627(a) says only that the information will “assist
[the Bureau] in complying with” federal statutes. Similarly, the
federal statutes plaintiffs invoke do not discuss the construction
plan approval phase at all. For example, the Shelf Lands Act
requires the Bureau to “provide[] for . . . safety” and “protection
of the environment” when overseeing the project, 43 U.S.C.
§ 1337(p)(4)(A)-(B); see also 30 C.F.R. § 585.103(b)(1)-(2); the
12
Preservation Act requires the Bureau to “take into account the
effect of the [project] on any historic property,” 54 U.S.C.
§ 306108; and NEPA requires the Bureau to assess “the
environmental impact of the [project].” 42 U.S.C.
§ 4332(2)(C)(i). Although these statutes may require Cape
Wind to obtain subsurface data before beginning construction,
they do not independently require geological surveys before the
Bureau can approve a construction plan. The departure delayed
the surveys, but the Bureau still required Cape Wind to complete
them before “commencing construction or otherwise disturbing
the seafloor . . ..” Pub. Emps., 25 F. Supp. 3d at 107. That is
enough to satisfy the federal statutes and 30 C.F.R.
§ 585.103(b)(2).6
Alternatively, plaintiffs argue that the Bureau violated its
own regulations because “[t]here is no written departure in the
record.” Alliance Br. at 37; see 30 C.F.R. § 585.103(b)(4). That
is not so. In a 2010 letter to Cape Wind, the Bureau explained
that it was willing to grant additional time “to obtain the
financing” for the surveys, which were projected to cost
“approximately $30 million,” and that as long as the
construction plan was “otherwise satisfactory,” the Bureau
“would approve a departure from its regulations . . ..” Plaintiffs
claim that this letter did not represent an actual departure, but
rather an invitation to Cape Wind to request one. Their
interpretation is overly formalistic. The Bureau may “prescribe
or approve departures” in order to facilitate “appropriate
activities” on an offshore energy lease. 30 C.F.R.
§ 585.103(a)(1). Although departures must be “in writing,” id.
§ 585.103(b)(4), Bureau regulations “impose no particular
requirements for the form or disclosure” of departures.
6
Of course, NEPA requires the Bureau to include these surveys
in its environmental impact statement; but we need not vacate the
construction plan on that basis. See pp. 9-10 supra.
13
Defendants Br. at 48. The regulations require only that “the
supporting rationale” for the departure be “documented in
writing by the [Bureau].” 74 Fed. Reg. 19,638, 19,717 (Apr. 29,
2009). The Bureau’s letter meets this requirement by offering
a rationale that is “consistent with the facilitation of ‘appropriate
activities on a lease.’” Pub. Emps., 25 F. Supp. 3d at 106
(quoting 30 C.F.R. § 585.103(a)(1)).
II
Plaintiffs next argue that Coast Guard and the Bureau
violated the Maritime Transportation Act by failing to include
adequate terms and conditions in Cape Wind’s Renewable
Energy Lease. See 120 Stat. 516, 540. Cape Wind’s lease
“authoriz[es] the use of [the Horseshoe Shoal],” 30 C.F.R.
§ 585.112, and specifies “terms, conditions, and stipulations” for
the construction and operation of Cape Wind’s renewable
energy facilities there. Id. § 585.201; see id. § 585.200 et seq.
(“Issuance of [Outer Continental Shelf] Renewable Energy
Leases”). Before issuing a lease, the Bureau must consult with
relevant federal agencies and “respond to findings of those
agencies . . ..” Id. § 585.203. One such agency is the Coast
Guard, which has the authority and responsibility under § 414 of
the Maritime Transportation Act to “specify the reasonable
terms and conditions the [Coast Guard] determines to be
necessary to provide for navigational safety with respect to the
proposed lease” and to “each alternative to the proposed
lease . . . considered by the [Bureau].” 120 Stat. 516, 540,
§ 414(a).7 The Bureau must then incorporate the Coast Guard’s
7
Section 414 applies exclusively to “offshore wind energy
facilit[ies] in Nantucket Sound,” 120 Stat. 516, 540, and was “passed
in large part” as a response to the Cape Wind Project, Pub. Emps., 25
F. Supp. 3d at 95 (citing 152 CONG. REC. S6439 (daily ed. June 22,
2006) (statement of Senator Stevens)).
14
terms into any lease it issues. See id. § 414(b). Plaintiffs claim
that the Coast Guard and the Bureau violated § 414 by including
terms that do not sufficiently “ensure navigational safety,” and
by failing to include terms “for each alternative” to the proposed
lease. Alliance Br. at 10, 19. We do not think either claim
requires the Coast Guard to reissue its terms.8
The Coast Guard released its terms and conditions for the
Cape Wind Project on August 2, 2007. The terms required Cape
Wind to satisfy several immediate conditions, such as devising
a turbine “marking scheme” to aid in navigation through the
wind farm, some ongoing reporting obligations, like filing
monthly “construction status” reports, and some future research
requirements, including examining whether the turbines “would
interfere in any way with marine communications or navigation
systems . . ..” According to the Coast Guard, its terms would
sufficiently “provide for navigational safety” in Nantucket
Sound.
Plaintiffs argue that the Coast Guard’s terms requiring
ongoing reporting and research violate § 414. They say that
§ 414 requires the Coast Guard to “assure navigational safety
before the [p]roject is approved,” and that these forward-looking
terms mean that the Coast Guard will be able to do so “only
after various analyses . . . are completed.” Alliance Br. at 9, 11.
The district court disagreed. It compared § 414’s requirements
to the licensing scheme in § 4(e) of the Federal Power Act, 16
U.S.C. § 797(e), which requires license conditions to be
“reasonably related to [the agency’s statutory] goal[s] . . ..”
Pub. Emps., 25 F. Supp. 3d. at 97 (quoting Escondido Mut.
Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765,
8
Similarly, we do not think the Bureau violated the Maritime
Transportation Act by incorporating the Coast Guard’s terms into
Cape Wind’s lease.
15
778 (1984)); see 152 CONG. REC. at S6439 (explaining that
§ 414 “has preceden[t] in the procedure for granting
hydroelectric licenses under the Federal Power Act”). The court
reasoned that the forward-looking terms here were “reasonably
related to the Coast Guard’s goal to provide navigational safety”
and therefore did not violate § 414. Pub. Emps., 25 F. Supp. 3d
at 97.
We agree with the court that the Coast Guard’s terms
comply with § 414, but for somewhat different reasons. Section
414 requires the Coast Guard to “specify the reasonable terms
and conditions the [Coast Guard] determines to be necessary to
provide for navigational safety” in Nantucket Sound. 120 Stat.
516, 540, § 414(a) (italics added). The Coast Guard stated that
its terms met this requirement, and we are hesitant to second
guess that determination “given the Coast Guard’s expertise” in
“maritime safety . . ..” Collins v. Nat’l Transp. Safety Bd., 351
F.3d 1246, 1253 (D.C. Cir. 2003). Section 414 also
contemplates the possibility that the terms might have
informational gaps that can be filled in later. After all, this
section requires the Coast Guard to issue its terms at least “60
days before” the Bureau publishes its draft environmental
impact statement. 120 Stat. 516, 540, § 414(a). In addition,
§ 414 applies only to projects covered by § 8(p) of the Shelf
Lands Act, which requires “inspection, research, [and]
monitoring” of renewable energy projects, 43 U.S.C.
§ 1337(p)(4)(L). The Coast Guard’s research and reporting
terms complement § 8(p) nicely. In short, the Coast Guard
believed that its terms would provide for navigational safety,
and the fact that some of those terms are forward-looking is not
enough to disregard this expert judgment.
Plaintiffs also claim that the Coast Guard violated § 414 by
failing to issue terms for the “alternative [project] sites under
consideration.” Alliance Br. at 19. They point to § 414’s
16
requirement that the Coast Guard issue terms for “each
alternative to the proposed lease,” 120 Stat. 516, 540, § 414(a),
and interpret this to mean that the Coast Guard must provide
terms for each “NEPA alternative.” Pub. Emps., 25 F. Supp. 3d
at 100. NEPA requires agencies to analyze all “reasonable” or
“feasible” alternatives to proposed actions, which plaintiffs say
includes alternative project locations. Citizens Against
Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991);
see 42 U.S.C. § 4332(2)(C). In contrast, the Coast Guard
interprets § 414 “to require only the issuance of terms and
conditions for alternative proposals” submitted by Cape Wind.
Pub. Emps., 25 F. Supp. 3d at 101.9 The Coast Guard claims
that plaintiffs’ interpretation is “illogical” because the Coast
Guard must issue terms before the Bureau publishes its draft
impact statement, so the Coast Guard would have to issue terms
for NEPA alternatives “before they [a]re even defined.”
Defendants Br. at 34.
We need not decide this question of interpretation because
any error by the Coast Guard was harmless. While the Bureau
was conducting research for its impact statement, it learned that
the alternative sites were “not technically feasible,” not
“economically viable,” or would have greater “[e]nvironmental
impacts” than the Horseshoe Shoal site.10 Therefore, the Coast
9
On appeal, the Coast Guard also argued that its general terms
“were relevant to any alternative that the [Bureau] might consider.”
Defendants Br. at 33. However, as plaintiffs point out, that position
is “contradicted by the Coast Guard’s prior position[]” that § 414
alternatives refer only to “sites proposed by [Cape Wind].” Alliance
Reply Br. at 9, 9 n.4. Therefore, we will not consider this argument.
See SEC v. Chenery Corp., 318 U.S. 80, 94-95 (1943).
10
The Bureau found that two other sites would have had less impact
“on visual resources” than the Horseshoe Shoal, but choosing those sites
would still have caused greater harm to various environmental resources
17
Guard’s failure to issue terms for alternative sites did not affect
the Bureau’s ultimate decision to choose the Horseshoe Shoal.
See 5 U.S.C. § 706 (“[D]ue account shall be taken of the rule of
prejudicial error.”). We do not see any point in requiring Cape
Wind to go back now and issue “navigational safety” terms for
otherwise inferior sites. 120 Stat. 516, 540, § 414; see Pub.
Emps., 25 F. Supp. 3d at 100-01 (“[I]t would be odd to require
the Coast Guard to provide terms and conditions for each NEPA
alternative, given that several alternatives were jettisoned
without detailed consideration for various reasons.”).
III
Plaintiffs’ final contention is that the Fish and Wildlife
Service violated the Endangered Species Act. See 16 U.S.C.
§ 1538. Under the Act and its regulations, agencies must
determine whether approved actions “may affect,” 50 C.F.R.
§ 402.14(a), any “endangered [or threatened] species of . . .
wildlife,” and if so, must consult with the Service, 16 U.S.C.
§ 1538(a)(1). See 50 C.F.R. §§ 17.21, 402.14(a). The Service
must then provide the agency with a written statement
“explaining how the proposed action will affect th[ose] species”
and recommending “reasonable and prudent” measures to
minimize any harm. Bennett v. Spear, 520 U.S. 154, 158
(1997); see 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14(g)-(i). The
Service must include its recommendations in what is known as
an “incidental take statement,” 520 U.S. at 158, and must base
them on the “best scientific and commercial data available,” 50
C.F.R. § 402.14(g)(8). See 16 U.S.C. § 1536(a)(2), (c)(1).
Plaintiffs argue that the Service’s incidental take statement for
the Cape Wind Project is arbitrary and capricious because it is
including “avifauna, subtidal resources, non-[endangered] mammals, fish
and fisheries, [and] essential fish habitat[s]. . ..”
18
not based on the best available scientific data, and because it
excludes a particular mitigation measure.
The Bureau began consultations with the Service in
November 2005 to determine whether the project could harm
any endangered or threatened species. On October 31, 2008, the
Service estimated that although Cape Wind’s activities would
not “jeopardize the continued existence” of any listed species,
50 C.F.R. § 402.14(g)(4), the turbines would nonetheless kill 80-
100 endangered roseate terns and ten threatened piping plovers
over the life of the project.11 See id. § 17.11(h) (“List of
11
These are two species of migratory birds, and plaintiffs also
argued that the Bureau violated the Migratory Bird Treaty Act by not
requiring Cape Wind to obtain a Migratory Bird permit before
harming these species. See 16 U.S.C. § 703(a). The Ninth Circuit
recently considered a similar issue in Protect Our Cmtys. Found. v.
Jewell, No. 14-55666, 2016 WL 3165630 (9th Cir. June 7, 2016). We
need not address this claim because, unlike the situation recounted in
the Ninth Circuit’s decision, Cape Wind intends to get a permit before
beginning construction. At oral argument, the Bureau explained that
the lease requires Cape Wind to comply with all federal laws and that
the Bureau’s “official position” is that Cape Wind is “obligated under
federal law to get a [migratory bird] permit.” The Bureau concedes
that failure to do so “will violate the lease.” Cape Wind agreed,
stating “unequivocally that the lease requires that Cape Wind comply
with all laws,” and that because the Bureau concedes that “a
[migratory bird] permit is required,” Cape Wind “will apply” for one.
Although such permits are typically issued for actions intended
to harm migratory birds, like hunting, the Service’s “longstanding
position” has been that the Act also applies to harm that “occurs
incidental to, and which is not the purpose of, an otherwise lawful
activity . . ..” 80 Fed. Reg. 30,032, 30,034 (May 26, 2015). The
Service is currently considering new regulations to authorize
incidental take. Id. Cape Wind may be able to secure the necessary
authorization through the new regulatory framework before beginning
19
Endangered and Threatened Wildlife”). The Service therefore
issued a draft incidental take statement recommending measures
to minimize harm to roseate terns and piping plovers in
Nantucket Sound. One recommendation was to temporarily turn
off the windmills during poor visibility periods to “reduce the
risk of collision” by birds flying through the wind farm – a
process ironically called “feathering” the turbines.12 Cape Wind
and the Bureau objected to this recommendation because they
were concerned it would shut down the turbines for too long.
The Service heeded these concerns. On November 21, 2008, it
published a final version of its incidental take statement that did
not recommend feathering. The Service explained that it had
excluded the measure because the Bureau and Cape Wind had
“determined” that feathering would “modif[y] the scope of the
project in a manner that is adverse to the project’s stated purpose
and need,” “have a deleterious [e]ffect on anticipated revenues,
financing, and power purchasing agreements,” and ultimately
have a steep enough “economic cost” to make the measure “not
feasible.”
construction, which is currently suspended until July 24, 2017. If not,
Cape Wind may still be eligible to apply for a permit under 50 C.F.R.
§ 21.27, which authorizes “special purpose permit[s]” for activities
“outside the scope of the standard form permits . . ..” Either way, we
take the defendants at their word that the lease requires a migratory
bird permit and that Cape Wind will apply for one.
12
“Feathering” involves shutting the turbines down and turning
the blades “into the wind to present a narrower face for collision.” In
its draft statement, the Service recommended feathering twice per year
for about three-to-four weeks at a time, and only when “climatic
factors reduce visibility at turbine height . . ..” These periods were
calculated to coincide with the migration, commuting, and foraging
times of piping plovers and roseate terns. The Service stated that
“feathering is the only operational change” that would “actually
reduce the level of [incidental take]” of these birds.
20
In June 2010, Plaintiffs challenged the incidental take
statement on the grounds that the Service had “improperly
delegat[ed] to Cape Wind and to the [Bureau]” its duty to
independently evaluate and recommend mitigation measures.
Pub. Emps., 25 F. Supp. 3d at 107. The district court initially
agreed, explaining that the Endangered Species Act requires the
Service to “make an independent determination” whether
feathering “was a reasonable and prudent measure . . ..” Id. at
130. The court therefore remanded the case on March 14, 2014,
for the Service to “make the required independent determination
on this point.” Id.
On remand, plaintiffs submitted scientific and economic
data to the Service that argued feathering “would have, at most,
a minuscule economic impact on the project,” and that the
government has previously required other wind projects to
“make comparable operational adjustments to minimize [harm
to] protected species.” PEER Br. at 17-18. The Service ignored
these submissions. In July 2014, the Service filed a letter with
the district court claiming that it had complied with the remand
order and had made an “independent evaluation of the initially
proposed feathering [measure] . . ..” The Service explained that
after consulting with its “in-house economist,” it had
“conclude[d] that the draft feathering [measure] should not be
included” in the incidental take statement. The letter added that
“[b]ecause the [c]ourt did not vacate the [incidental take
statement]” or order “the reopening of the administrative
record,” the Service had limited its determination to “the
information available” at the time the statement was issued in
2008. Therefore, according to the Service, it did not need to
consider plaintiffs’ 2014 submissions.
Plaintiffs argued that because the Service considered its
economist’s 2014 analysis, the Service was required to
considered plaintiffs’ submissions as well. Plaintiffs also
21
challenged the merits of the Service’s decision to exclude
feathering. In November 2014, the district court dismissed these
challenges on the grounds that they were either “waived or were
already dismissed by the [c]ourt.” Although the court’s March
2014 order required the Service to “make the required
independent determination,” Pub. Emps., 25 F. Supp. 3d at 130
(italics added), in November the court interpreted its order to
require only that the Service “clarify[] that it made an
independent determination in 2008 . . ..” Joint Appendix at 777-
78 (italics added). Therefore, according to the court, the Service
was not “required to consider the materials that the plaintiffs
sought to have included in the record.” The court also found
that because plaintiffs “challenge[d] only whether the
determination itself was independently made by the [Service]
and not the bases of [that] determination,” they had waived their
right to challenge the merits of the incidental take statement.
Plaintiffs may be correct that the district court’s remand
order required the Service to “make” a new independent
determination, and therefore reopened the record. PEER Br. at
26. On the other hand, the Service may be correct that the
court’s remand order required the Service to only “clarify” that
it made an independent determination in 2008. Defendants Br.
at 61; see AT&T Wireless Servs., Inc. v. FCC, 365 F.3d 1095,
1099 (D.C. Cir. 2004) (“The court is generally the authoritative
interpreter of its own remand . . ..”). We need not decide who
is right. Even if the district court’s order did not reopen the
administrative record, the Service did so on its own. The
Service decided to exclude feathering based on “[t]he expert
opinion of [its] in-house economist,” which he communicated to
the Service on May 28, 2014. That he reviewed information
available in 2008 is beside the point. He analyzed the
information in 2014. He did so “in response” to the court’s
2014 remand order. The Service concedes that his opinion
“reflected an additional analysis of the decision” to exclude
22
feathering, Defendants Br. at 63, and that the Service then relied
upon this opinion “[i]n particular” to “find that the draft
feathering [measure] would not be reasonable.” By doing so,
the Service reopened the record and was required to consider
plaintiffs’ submissions.
We therefore hold that the Service’s decision to disregard
plaintiffs’ submissions was arbitrary and capricious, and we
vacate the incidental take statement. Because we vacate the
statement, we need not decide whether the district court erred by
denying plaintiffs the opportunity to challenge its merits.
IV
We reverse the district court’s judgment that the Bureau’s
environmental impact statement complied with NEPA and that
the Service’s incidental take statement complied with the
Endangered Species Act, and we vacate both statements. See 5
U.S.C. § 706(2). We affirm the district court’s judgment
dismissing plaintiffs’ remaining claims, and remand the case for
proceedings consistent with this opinion.
So ordered.