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Wildlife Law Call
CASE UPDATES
Spring 2015
Focus on energy development and its impacts on fish and wildlife
U.S. Circuit Courts
Aransas Project v. Shaw, 774 F.3d 324 (5th Cir. 2014)
Submitted by Morsheda Hashem
The Aransas Project, an environmental organization, filed a suit against the Texas
Commission on Environmental Quality (TCEQ) under the Endangered Species Act (ESA),
alleging that the agency failed to adequately manage the freshwater flows into the bay,
consequently resulting in takes of endangered whooping cranes. TCEQ administers the
state surface water use permitting program. Plaintiff claimed TCEQ issued water use permits
in 2008 and 2009 that proximately caused many whooping cranes to die. Plaintiff sought an
injunction that would prevent TCEQ from issuing permits to withdraw water from the rivers
that ultimately fed the estuary where the cranes reside. The lower court granted the
injunction; however, this court reversed and found that the injunction was an abuse of
discretion. The court reasoned that the issue of whether TCEQ administering licenses to
take water as being the proximate cause of the deaths of whooping cranes had not been
proven, and that there could have been other reasons why the cranes died. For example, the
cranes could have died from lack of sufficient food or by the mere forces of nature. Thus, the
court held that the correlation between water licensing and crane deaths was too attenuated,
and, therefore, reversed the injunction against TCEQ.
Google Scholar link to case
Conservation Congress v. Finley, 774 F.3d 611 (9th Cir. 2014)
Submitted by Eric Hughey
Conservation Congress filed suit against the United States Forest Service
(USFS) and the Fish and Wildlife Service (FWS), alleging that the agencies
violated the Endangered Species Act (ESA), the National Forest Management
Act, and the National Environmental Policy Act (NEPA) by failing to adequately
consult as to a lumber thinning and fuel reduction project, known as the
Beaverslide Project, and its potential effects on the Northern Spotted Owl. The
district court granted summary judgment for the government and Conservation
Congress appealed. First, the 9th Circuit considered defendants' arguments
that the notice of suit was not specific enough and that the suit was moot because
of new consultation USFS and FWS conducted in connection with a 2012
redesignation of critical habitat. The court affirmed the district court's ruling that
Conservation Congress properly noticed the suit. It also affirmed the district
court's ruling for the plaintiff on the mootness issue, noting that the work done
under the 2012 redesignation did not adequately address plaintiffs' allegations
regarding the 2011 recovery plan. Then, the court turned to the merits of the
ESA issues. It determined that the Forest Service adequately considered new
information obtained from the 2011 Recovery Plan, and also used the best
scientific and commercial data available as required by the ESA. Similarly, the
court also determined that consultations provided a thorough examination of the
possible effects of the Beaverslide Project on the owl's habitat, and was
therefore adequate under NEPA's hard look standard. The court affirmed
summary judgment in favor of the government.
Google Scholar link to case
Friends of Merrymeeting Bay v. Hydro Kennebec, LLC, 759 F.3d 30 (1st
Cir. 2014)
Submitted by Justin Walton
Plaintiff environmental groups brought an action under the Endangered Species
Act and Clean Water Act (CWA) against operators of hydroelectric dams. Plaintiffs
claimed that defendants failed to comply with the Kennebec Hydro Developers
Group Settlement Agreement regarding endangered Atlantic salmon passage
through the hydroelectric dams' turbines. The Settlement Agreement gave dam
operators two options to accommodate fish passage. If the hydroelectric dam
operator chooses not to install fish bypass systems and instead desires that fish
pass through turbines, it must conduct studies that show that passage will not
significantly harm or injure salmon. Otherwise, it must install fish bypass
systems. The defendants chose to construct fish bypass systems so that the fish
would not pass through the turbines. Despite bypass structures, plaintiffs
alleged, fish continue to pass through the turbines and were harmed, and the
defendants knew and therefore were in violation of the Agreement and the CWA.
The defendants moved the trial court for summary judgment on the CWA claims,
which it granted, finding that plaintiffs could not allege sufficient facts to show
that defendants' desired that the fish pass through the turbines and thus
defendants did not violate the Agreement and the CWA. On appeal, the court
held that when determining whether the Defendant desired passage through the
turbines, evidence of the Defendants' knowledge of passage through the
turbines and effectiveness of the bypass methods are relevant when considering
a motion for summary judgment. It vacated the district court's judgment and
remanded the case for further consideration of the evidence
Google Scholar link to case
U.S. District Courts
Bundorf v. Jewell, No. 2:13-CV-00616-MMD-PAL, 2015 WL 430600 (D. Nev. Feb. 3, 2015)
Submitted by Justin Walton
After consulting with the U.S. Fish and Wildlife Service, the Bureau of Land
Management approved a wind energy development project in southern Nevada.
The project area is home to threatened desert tortoise and some bird species
such as golden eagles. Plaintiff individuals and environmental groups filed suit to
challenge the decision. Plaintiffs alleged that defendants violated the National
Environmental Policy Act (NEPA), the Endangered Species Act, the Federal Land Policy
and Management Act, the Bald and Golden Eagle Protection Act, the Administrative
Procedure Act, and the Migratory Bird Treaty Act. The court required further
explanation regarding impacts on tortoises and eagles from the defendants
before ruling on whether the final environmental impact statement was
insufficient and violated NEPA. The court also found that a Supplemental
Environmental Impact Study (SEIS) was necessary given a new study on golden
eagles. It remanded the decision to BLM to supplement the administrative
record and to prepare a SEIS.
Google Scholar link to case
Cape Fear River Watch, Inc. v. Duke Energy Progress, Inc., 25 F.Supp.3d
798 (E.D.N.C. 2014)
Submitted by Corrinna Bailey
Plaintiff environmental groups alleged Duke Energy Progress's coal-fired
electric plant violated the Clean Water Act (CWA) by discharging polluted water from
its coal ash lagoon into Sutton Lake, where people fished, and into groundwater. Defendant
responded with a motion to dismiss arguing that the court lacked subject matter jurisdiction,
as the CWA prohibits citizens from filing suit for the same violation filed by the federal or
state government; and that the affected sources were not waters of the United States. The
court rejected the first argument, distinguishing the current claim from the state agency's
claims against defendant. Secondly, the court granted the motion to dismiss in part and
denied it in part, finding that the groundwater was not jurisdictional, but that the lake was. In
reaching this conclusion, the court considered two standards to define waters of the United
States. The permanent waters standard requires a relatively permanent body of water
ordinarily described as a stream, ocean, river, or lake connected to traditional interstate
navigable waters; or a wetland with a continuous surface connection to such water. The
significant nexus standard requires a significant nexus such that the waters or wetlands
either alone or in combination with similarly situated regional lands significantly affect the
chemical, physical, and biological integrity of waters readily understood as navigable.
Considering these standards, the court reasoned groundwater was not a water of the United
States as it did not fall within the meaning of the CWA, but that the lake was because,
despite the lake's creation as a cooling pond, it fit squarely within common understanding as
a lake, and other public lakes used as cooling reservoirs were classified as waters of the
United States.
Google Scholar link to case
Center for Biological Diversity v. Export Import Bank for the U.S., No. C 12-6325 SBA,
2015 WL 738641 (N.D. Cal. Feb. 20, 2015)
Submitted by Leslie Garrison
Plaintiff environmental group brought action against the Export-Import Bank of the U.S.,
alleging that the Bank did not comply with the Endangered Species Act (ESA), the National
Historic Preservation Act, or the Administrative Procedure Act when approving $4.8 billion in
financing to two liquefied natural gas construction projects in Australia. The projects would
partially be located in the Great Barrier Reef World Heritage Area. Plaintiffs contended that
the projects would harm listed wildlife including dugongs, whales, saltwater crocodiles, and
sea turtles. Defendant filed for a motion to dismiss based on a failure to allege sufficient facts
to support a claim, arguing that the ESA does not require agencies to consult for projects in
foreign countries. The court denied defendant's motion because "agency actions" requiring
action under ESA are defined very broadly and defendant did not provide sufficient facts that
the financing was relegated only to construction activities taking place in Australia and not to
post-construction facilities that involve the export of materials on the high seas.
Google Scholar link to case
Center for Biological Diversity v. Hagel, No. C-03-4350 EMC,2015 WL
1568838 (N.D. Cal. Feb. 13, 2015), appeal docketed, No. 15-15766 (9th Cir.
Apr. 16, 2015)
Submitted by Jason Statler
The Center for Biological Diversity (CBD) sued the Department of Defense
(DOD) for injunctive relief, alleging that DOD's construction on an airbase in
Japan would alter or destroy the feeding and breeding grounds of the Okinawa
Dugong, an endangered species. Specifically, CBD alleged that DOD "failed to
take into account" adverse effects to the dugong under the National Historic
Preservation Act (NHPA). DOD countered that the proposed construction falls
under the political question doctrine and accordingly is an executive branch
decision regarding foreign policy and is not enjoinable by the court. The court
held that the political questions doctrine controlled and so it lacked the power to
enjoin or prohibit the construction of an overseas military facility that was being
built in accordance with treaty obligations. Furthermore, the court also held that
the CBD did not have standing, as any declaratory relief the court granted would
not address CBD's alleged injury because the specific NHPA provision that
plaintiff is suing under "neither forbids destruction of a protected property nor
commands its preservation." In other words, even if the court ruled in plaintiff's
favor, that ruling would not require DOD to stop or alter its construction plans,
and so there was no guarantee that CBD's alleged injury would be redressed.
Google Scholar Link to Case
Defenders of Wildlife v. Jewell, No. 3:13-cv-698-PLR-CCS, 2015 WL 402680
(E.D. Tenn. Jan. 28, 2015)
Submitted by Eric Hughey
Defenders of Wildlife and other environmental groups brought suit against the
Office of Surface Mining and Reclamation (OSM), the Department of the
Interior, and the Fish and Wildlife Service under the Endangered Species Act
and the Administrative Procedure Act. Plaintiffs alleged that contaminated coal
mine water was seeping into waterways and harming endangered fish. The
defendants moved to dismiss the case for lack of standing and for mootness.
The court held that plaintiffs did not allege site-specific injuries on some of their
claims, and therefore, plaintiffs failed to establish standing on those claims. The
defendants moved to dismiss some claims as moot because the mine to which
the claims pertained had been closed and was undergoing remediation. The
court refused to dismiss these claims as moot, holding that the OSM could still
revise or revisit the reclamation plan or issue an enforcement order for further
remedial work.
Google Scholar Link to Case
Kentucky Coal Association, Inc. v. Tennessee Valley Authority, No. 4:14-CV-00073JHM, 2015 WL 461402 (W.D. Ky. Feb. 3, 2015), appeal docketed, No. 15-5163 (6th Cir. Feb.
19, 2015)
Submitted by Samantha Reasner
Plaintiffs filed a complaint seeking a declaratory judgment that defendant, Tennessee Valley
Authority, violated the National Environmental Policy Act (NEPA), the Administrative
Procedure Act, and the Tennessee Valley Authority Act by failing to issue an environmental
impact statement (EIS) regarding its decision to retire two coal-fired electric generating units
and replace them with a natural gas-powered generation facility. Instead, the Defendant
issued an Environmental Assessment (EA) with a Finding of No Significant Impact. Plaintiffs
argued that an EIS was required because TVA had previously said the action taken would
"normally" require one. The court held that TVA had discretion to determine whether an EIS
was necessary, regardless of its statement that this action would normally require one.
Additionally, plaintiffs alleged that TVA segmented its analysis of the effect of the action.
Plaintiffs argued that the EA had to analyze the cumulative effects of the retirement of both
coal units. The court held that TVA's conclusion that the effects were too speculative was
appropriate because the timing of retirement was not yet established. The court also held
that TVA's NEPA analysis adequately addressed wetlands, endangered and threatened
species, historical and cultural concerns, and greenhouse gas emissions. Plaintiffs also
argued that TVA had a predetermined outcome in mind when it did the NEPA analysis, but
the court found that NEPA does not require an agency to be impartial -- only that it not make
an irreversible and irretrievable commitment of resources before doing the analysis.
Defendant's motion for judgment on the administrative record was granted. Plaintiffs' appeal
is currently pending before the 6th Circuit.
Google Scholar Link to Case
National Parks Conservation Association v. U.S. Department of the Interior, No. 2:11cv-578-FtM-29CM, 2015 WL 476163 (M.D. Fla. Feb. 5, 2015), appeal docketed,
No. 15-11599 (11th Cir. April 14, 2015)
Submitted by Jason Statler
In September 2014, the district court entered summary judgment for the
government on plaintiff environmental groups' challenge to the National Parks
Service's (NPS) decision to allow off-road vehicle use in part of a national
preserve in Florida. The groups petitioned the court for reconsideration,
arguing in part that the NPS violated the National Park Service Organic Act by
failing to include an impairment determination with respect to existing visitor use
and experience. The court determined that the Organic Act was silent on the
issue of park management and therefore gave the Secretary broad discretion on
how to implement the statutory mandate. The Plaintiffs' argument that NPS's
management policies created a duty for NPS to include an impairment
determination was also unavailing, the court determined, as the management
policies do not create an enforceable duty against NPS. The court also ruled that
it had previously adequately dealt with the other issues on which plaintiffs
requested reconsideration. Accordingly, the court denied the motion for
reconsideration.
Google Scholar Link to Case
Oceana v. Bureau of Ocean Energy Management, 37 F.Supp.3d 147
(D.D.C. 2014)
Submitted by Morsheda Hashem
Various environmental organizations filed a lawsuit against the Bureau of Ocean
Energy Management (BOEM) and the National Marine Fisheries Service
(NMFS), challenging BOEM's approval of two oil and gas leases in the Gulf of
Mexico where the Deepwater Horizon oil spill occurred. Oil producers
intervened as defendants. The plaintiffs made National Environmental Policy Act
(NEPA) and Endangered Species Act (ESA) claims against BOEM and Administrative
Procedure Act (APA) claims against NMFS. Specifically, Plaintiffs claimed that
BOEM violated NEPA by failing to take a hard look at the environmental
consequences of the lease sale and by failing to consider a no-action alternative,
that BOEM violated the ESA by failing to prevent jeopardy to listed species by
approving the lease sale, and that NMFS violated APA by delaying in preparing a
biological opinion (BO). The court found for defendants on all claims. First, it
found that BOEM complied with NEPA by doing appropriate analysis with the
information it had, incorporated new data when it came available, considered the
possibility of another spill, and did consider a no-action alternative. It also found
that BOEM followed the ESA by ensuring that it used the best available science
and acted to ensure that protected species would not be jeopardized, and it
could act without waiting for NMFS to finish the BO as it did not make an
irreversible or irretrievable commitment of resources. NMFS's delay in
producing the BO was not unreasonable, the court decided, so it granted
summary judgment for NMFS on the APA claim as well.
Google Scholar Link to Case
Ohio Valley Environmental Coalition v. Fola Coal Company, LLC, No. 2:13-5006, 2014
WL 3743597 (S.D.W.Va. July 30, 2014)
Submitted by Samantha Reasner
Plaintiffs alleged the Fola Coal Company violated the Clean Water Act and
the Surface Mining Control and Reclamation Act by discharging ionic pollution from
its surface mine into Twentymile Creek in violation of its permits. Plaintiffs
moved for summary judgment on jurisdictional issues, alleging that they have
standing; defendants filed a cross-motion for summary judgment on standing
and four other issues, which the court handled summarily. The court then
turned to standing. It found that two members of plaintiffs' organizations could
show injury in fact through alleged harm to their aesthetic and recreational
interests - they visited the area and had concerns about the discharges' effects
on the area. Their injuries were also "fairly traceable" to the discharges and a
court can enjoin the discharges. It also found that plaintiffs had associational
standing. It granted plaintiffs' motion.
Google Scholar Link to Case
Protect Our Lakes v. U.S. Army Corps of Engineers, No. 1:13-CV-402-JDL, 2015 WL
732655 (D. Me. Feb. 20, 2015)
Submitted by Corrinna Bailey
The Maine Department of Environmental Protection approved Evergreen for the
construction of a wind energy farm after considering impacts to bald eagles,
Atlantic salmon, and other species. Evergreen also informally consulted with the
United States Army Corps of Engineers (Corps) to fill wetlands for the wind
farm's construction. During the public comment period on the permit, the
National Marine Fisheries Service (NMFS) recommended mitigation measures
for potential impacts on salmon and the Corps informally consulted with the U.S.
Fish and Wildlife Service (FWS) regarding potential impacts on eagles and other
species. Plaintiff environmental groups alleged the Corps violated several
environmental statutes, including the Endangered Species Act (ESA) and the
Bald and Golden Eagle Protection Act (BGEPA), by issuing a Clean Water Act
(CWA) § 404 permit for the wind farm's construction without first complying with
these laws. Since plaintiffs did not sue NMFS or FWS, they could only prevail on
their ESA consultation claim if they alleged additional information regarding
impacts of the project on listed species that contrasts with the information in
those consulting agencies' opinions. The court found that plaintiffs did not meet
their burden of proof on this claim. The plaintiffs also claimed that ESA required
issuance of an incidental take statement, but the court disagreed. BGEPA does
not have a citizen suit provision, so the court treated plaintiffs' BGEPA claim as
an Administrative Procedure Act claim. Plaintiffs essentially claimed that it was arbitrary
and capricious for the Corps to issue a CWA 404 permit without an eagle take permit, but the
law does not require this, nor did plaintiffs show that eagle take had occurred. The court
granted summary judgment for the defendants.
Google Scholar Link to Case
Public Employees for Environmental Responsibility v. Beaudreau, 25 F.Supp.2d 67
(D.D.C. 2014)
Submitted by Ethan Shirley
Wind developing companies sought approval for various projects in Nantucket
Sound from the Bureau of Ocean Energy Management (BOEM). During the
approval process, BOEM had to consult with several other agencies, including
the Coast Guard, the Fish and Wildlife Service (FWS), and the National Marine
Fisheries Service (NMFS) as it reviewed the projects. BOEM ultimately issued
decisions approving aspects of the projects. Several Plaintiffs filed separate
suits to challenge the agency reviews of the projects. These claims were
consolidated. Plaintiffs brought claims under several federal statutes, including
the Administrative Procedure Act, the Endangered Species Act (ESA), the Migratory Bird
Treaty Act (MBTA), the National Environmental Policy Act, the Outer Continental Shelf
Lands Act, the Clean Water Act, the Rivers and Harbors Act, the Coast Guard and Maritime
Transportation Act of 2006, the National Historic Preservation Act, and the Energy Policy
Act. Of particular interest is the court's review of BOEM's work under ESA and
the MBTA. Some Plaintiffs made ESA claims against FWS for the wind turbines'
potential impacts to protected seabirds, and the court found that FWS had
improperly deferred to BOEM and Cape Wind on operational adjustments to
turbines to limit bird kills. The court also examined claims against NMFS
regarding impacts on right whales and sea turtles. It found that NMFS's
biological opinion with regard to right whales met the ESA's requirements, but
that NMFS improperly failed to issue an incidental take statement with the
opinion. It also approved NMFS's analysis with respect to impacts on sea turtles.
The court also held that BOEM did not need to get an MBTA take permit for its
approval of the project, as its approval was too far removed from the causal chain
of any future bird takes. The court remanded the case to the FWS to make an
independent determination on operational adjustments to turbines relating to
protecting seabirds and remanded to NMFS to issue an incidental take statement
for right whales. A subsequent appeal in June 2014 to the U.S. Court of Appeals
for the D.C. Circuit was dismissed.
Google Scholar Link to Case
Reese River Basin Citizens Against Fracking, LLC v. U.S. Bureau of Land
Management, No. 3:14-CV-00338-MMD-WG, 2014 WL 4425813 (D. Nev. Sept. 8, 2014)
Submitted by Ethan Shirley
Plaintiff, a group whose members included farmers and ranchers who have
property interests or water or grazing rights in land that the Bureau of Land
Management (BLM) has proposed for oil and gas leasing, brought suit to enjoin
BLM from issuing some oil and gas leases. BLM started the mineral leasing
process for this land, releasing a preliminary Environmental Impact Statement
(EIS) under the National Environmental Policy Act (NEPA) for public comment.
BLM's preliminary EIS showed that development would cause no significant
environmental impact. BLM then conducted a lease sale, but did not issue any
leases. Plaintiff then petitioned the court for a preliminary injunction, alleging
that BLM had not conducted appropriate NEPA reviews. In its analysis, the court
noted that for it to have jurisdiction over the claim, final agency action was
required. Final agency action requires "consummation of the agency's decisionmaking process" and determination of legal rights or obligations. BLM was still in
the process of revising its environmental analysis through public comment, and
had not issued any leases. Therefore, the court did not have jurisdiction to
issue an injunction and it denied Plaintiff's injunction.
Google Scholar Link to Case
Rocky Mountain Wild v. U.S. Fish and Wildlife Service, No. CV 13-42-M-DWM, 2014 WL
7176384 (D. Mont. Sept. 29, 2014)
Submitted by Jourdan Rasmussen
Plaintiff environmental groups filed suit in response to U.S. Fish and Wildlife
Service's (FWS) 12-month finding that the prairie dog was not threatened or
endangered in response to a petition to list the white-tailed prairie dog under the
Endangered Species Act (ESA). Both sides moved for summary judgment. The court
found for plaintiffs on some counts and for defendants on others. First, the court considered
whether FWS did adequate analysis to determine whether the prairie dog was at risk
throughout a significant portion of its range. It found that FWS failed to adequately consider
historic range, but that it adequately evaluated abundance and distribution. The court also
considered FWS's threats analysis, determining that FWS inappropriately dismissed some
threats after determining that they were individually insignificant and that it inappropriately
concluded that the regulatory framework to protect the prairie dog was sufficient given the
threats posed by oil and gas development. On the other hand, the court found other aspects
of FWS's prairie dog threats analysis, such as cumulative impacts, to be adequate. Finally,
the court found that FWS disregarded available data, which violated the ESA's mandate that
FWS use the best available science in its analysis. The court remanded the case to FWS for
reconsideration on the aspects of its findings that the court deemed deficient.
Link to Case
San Francisco Herring Association v. Pacific Gas and Electric Co., No.
14-cv-04393-WHO, 2015 WL 859420 (N.D. Cal. Feb. 26, 2015)
Submitted by Leslie Garrison
Plaintiffs, a local homeowner and a fishermen's association, allege that Pacific
Gas & Electric Company violated both the Clean Water Act (CWA) and the Resource
Conservation and Recovery Act (RCRA), as the defendant operated manufactured gas
plants over one hundred years ago that continue to pollute the San Francisco Bay and some
plaintiffs' homes. Defendant allegedly dumped waste residues from the manufacturing
process on nearby sites and into nearby waterways. The homeowner now resides on a
waste deposit site. Additionally, the waste has been proven to be present in groundwater,
which moves into the storm sewer and then into the Bay. Once in the Bay, it may kill fertilized
herring eggs, causing potentially devastating impacts on the herring that breed there and the
economic value they bring to the community. Defendants sought a motion to dismiss alleging
a deficient notice of suit under the CWA, that the plaintiff Association lacked standing, that
plaintiffs inadequately stated a claim under the CWA, and that the plaintiffs inadequately
stated a claim under RCRA. The court found that the plaintiffs pleaded their CWA claim with
enough specificity to meet the CWA notice requirement and that the Association met the
standing requirements. Further, it found that the plaintiffs adequately alleged ongoing
violations and not wholly past violations, that the plaintiffs appropriately identified the alleged
point sources in question, and that they showed the Bay was affected such that the plaintiffs
alleged a discharge into a navigable water and not just groundwater. Finally, the court found
that the plaintiff sufficiently pleaded RCRA claims and they were not precluded by the CWA
claims. The court denied the motion to dismiss.
Google Scholar Link to Case
Sierra Club v. U.S. Army Corps of Engineers, Civil Action No. 13-cv-1239 (KBJ),
2014 WL 4066256 (D.D.C. Aug. 18, 2014), appeal docketed, No. 14-5205 (D.C.
Cir. Aug. 27, 2014)
Submitted by Jourdan Rasmussen
Plaintiff environmental groups filed suit against the U.S. Army Corps of
Engineers, U.S. Fish and Wildlife Service, and the U.S. Pipeline and Hazardous
Materials Safety Administration (PHMSA), alleging that these agencies violated
the National Environmental Policy Act (NEPA), the Administrative Procedure Act (APA), and
the Clean Water Act (CWA) by allegedly failing to do a full environmental review of
an oil pipeline project. The 589-mile-long pipeline was slated for construction
from Pontiac, Illinois to Cushing, Oklahoma and almost entirely on private land.
The pipeline would only cross 27.28 miles of federal land. Finding that PHMSA
had not even received an application for approval of an oil spill response plan, the
court dismissed claims against PHMSA. The court found that a construction of a
domestic pipeline on private lands simply did not qualify as a "federal
government action," and therefore reasoned that the agencies' failure to
consider the actions of a private company on private lands did not violate NEPA
or the CWA. The court further held that Congress intended NEPA to cover
major federal actions, not "federal evaluation and oversight of a private
construction project," and so neither agency had a duty to review the pipeline.
Finally, the court found that the Corps' cumulative impacts analysis comported
with NEPA and the APA. Thus, the court entered summary judgment in favor of
the governmental agencies. Plaintiffs are appealing to the D.C. Circuit.
Google Scholar Link to Case
Union Neighbors United, Inc. v. Jewell, Civil Case No. 13-01435 (RJL),2015
WL 1285741 (D.D.C. March 18, 2015)
Submitted by Erin Elizabeth Sweeney
Union Neighbors United sued the Department of the Interior, the U.S. Fish and
Wildlife Service ("FWS") and the Midwest Region of the FWS over the final
approval and issuance of an incidental take permit for endangered Indiana bats.
Under the permit, Buckeye Wind Project was approved for 26 individual takes
over a five-year period or 130 individual takes over a 25-year period. Union
Neighbors United asserted that the issuance of the incidental take permit
violated the National Environmental Policy Act, the Endangered Species Act (ESA), and
the Administrative Procedure Act as arbitrary and capricious, and abuse of
discretion, and not in accordance with the ESA's mitigation requirements. Ruling
on a motion for summary judgment, the court held that the FWS followed proper
procedure in determining that the wind project will, "to the maximum extent
practicable, minimize and mitigate" the impacts of the taking. The court further
held that once FWS determined that the taking was fully offset, the agency was
not required to investigate measures that could further minimize or mitigate the
impact of the taking. Because FWS "used the best available scientific evidence
and modeling, as well as its expertise, to conclude that the [p]roposal will
adequately protect the Indiana bat," its decision is entitled to deference. The
court granted summary judgment for the government.
Google Scholar Link to Case
United States of America v. PacifiCorp Energy, No. 14-CR-301-KHR, Plea Agreement,
ECF No. 2 (D. Wyo. Dec. 19, 2014)
Submitted by Erin Elizabeth Sweeney
In December 2014, PacifiCorp pleaded guilty to violating the Migratory Bird
Treaty Act (MBTA) due to the deaths of protected birds at four wind projects in Wyoming,
Seven Mile Hills and Glen Rock/Rolling Hills. Pursuant to the plea agreement, the company
will pay $1.9 million in community service payments, $200,000 in restitution, and $400,000
in fines. The agreement also requires PacifiCorp to implement a comprehensive compliance
plan negotiated with the U.S. Fisheries and Wildlife Service aimed at preventing migratory
bird deaths. Additionally, the company must also apply for Eagle Take Permits for each wind
project. The settlement agreement provides that the federal government will not criminally
prosecute subsequent violations of the MBTA by either wind project as long as PacifiCorp
complies with the negotiated plan and seeks Eagle Take Permits. Compliance costs are
estimated at $600,000 per year.
Google Scholar Link to Case
List of Selected Federal Statutes Cited in Cases
Administrative Procedure Act (APA): Sets framework by which federal
agencies can establish rules, as well as provides for judicial review of agency
action. http://www.gpo.gov/fdsys/pkg/USCODE-2013-title5/pdf/USCODE-2013title5-partI.pdf
Bald and Golden Eagle Protection Act (BGEPA): Protects bald and golden
eagles. http://www.gpo.gov/fdsys/pkg/USCODE-2013-title16/pdf/USCODE2013-title16-chap5A-subchapII.pdf
Clean Water Act (CWA): Regulates discharges of pollutants into and quality
standards for surface waters.
http://www.gpo.gov/fdsys/pkg/USCODE-2013-title33/pdf/USCODE-2013-title33chap26.pdf
Endangered Species Act (ESA): Sets procedures for listing species of
conservation concern as "endangered" or "threatened" as well as designating
habitat "critical" to these species' survival, prohibits "take" of endangered
species, and provides exceptions to take prohibitions.
http://www.gpo.gov/fdsys/pkg/USCODE-2013-title16/pdf/USCODE-2013-title16chap35.pdf
Energy Policy Act (EPAct) of 2005: Gives the Federal Energy Regulatory
Commission additional authority to ensure the electricity industry is competitive,
to protect consumers, and to strengthen the U.S.'s energy infrastructure.
http://www.gpo.gov/fdsys/pkg/USCODE-2013-title42/pdf/USCODE-2013-title42chap149-subchapXII.pdf
Federal Land Policy and Management Act (FLPMA): The framework for
the Bureau of Land Management's management of federal public lands.
http://www.gpo.gov/fdsys/pkg/USCODE-2013-title43/pdf/USCODE-2013-title43chap35.pdf
Migratory Bird Treaty Act (MBTA): Originally passed to implement an
international treaty on migratory birds, the MBTA protects many species of
migratory birds. http://www.gpo.gov/fdsys/pkg/USCODE-2013title16/pdf/USCODE-2013-title16-chap7-subchapII.pdf
National Environmental Policy Act (NEPA): Establishes national
environmental policy and requires federal agencies to consider the
environmental impacts of their actions. http://www.gpo.gov/fdsys/pkg/USCODE2013-title42/pdf/USCODE-2013-title42-chap55-subchapI.pdf
National Historic Preservation Act (NHPA): Legislation intended to
preserve historical and archaeological sites in the U.S. It requires federal
agencies to evaluate the impact of proposed projects on historic properties. It is
enforced through a review process by which the federal agency must "take into
account" the building project's impact on the historic site.
http://www.gpo.gov/fdsys/pkg/USCODE-2013-title16/pdf/USCODE-2013-title16chap1A.pdf
National Park Service Organic Act (NPSOA): The act that set up the
National Park Service and sets forth NPS's duties and authorities.
http://www.gpo.gov/fdsys/pkg/USCODE-2013-title16/pdf/USCODE-2013-title16chap1-subchapI.pdf
Outer Continental Shelf Lands Act (OCSLA):
The Outer Continental Shelf Lands Act, created on August 7, 1953, defines the OCS as all
submerged lands lying seaward of state coastal waters (3 miles offshore) which are under
U.S. jurisdiction. Under the OCSLA, the Secretary of the Interior is responsible for the
administration of mineral exploration and development of the OCS.
http://www.gpo.gov/fdsys/pkg/USCODE-2013-title43/pdf/USCODE-2013-title43chap29-subchapIII.pdf
Resource Conservation and Recovery Act (RCRA): The primary federal
statute regulating solid and hazardous wastes.
http://www.gpo.gov/fdsys/pkg/USCODE-2013-title42/pdf/USCODE-2013-title42chap82.pdf
Surface Mining Control and Reclamation Act (SMCRA): A Federal Act
that created the Office of Surface Mining Reclamation and Enforcement to
regulate surface coal mining operations and the reclamation of abandoned
mines.
http://www.gpo.gov/fdsys/pkg/USCODE-2013-title30/pdf/USCODE-2013-title30chap25.pdf
Tennessee Valley Authority Act (TVAA): Act that set up the Tennessee
Valley Authority (TVA). The TVA is incorporated as the largest public power
provider in the United States. Congress established TVA in 1933 to address a
wide range of environmental, economic, and technological issues, including the
delivery of low-cost electricity and the management of natural resources.
http://www.gpo.gov/fdsys/pkg/USCODE-2013-title16/pdf/USCODE-2013-title16chap12A.pdf
About the Student Contributors
Originally from Alaska, Corinna Bailey is a second year law student at Michigan
State University College of Law. Her focus is on Environmental Law and Indian
Law, which she hopes to apply toward a future career in the conservation of her
home state's natural resources.
Leslie Garrison is a JD/MBA candidate at Michigan State University
concentrating on corporate law and supply chain management. Prior to attending
graduate school, Leslie worked as a wind energy developer, which gave her
experience in project management, lobbying and regulatory compliance. After
graduation, Leslie will be working in a business development role at Intel
Corporation in the San Francisco Bay Area.
Morsheda Hashem is a third year JD student at Michigan State University
College of Law. She is interested in practicing family law, immigration law, and
international law in the greater Chicago area of Illinois. Additionally, Ms. Hashem
hopes to travel abroad and work for international organizations in the legal and
humanitarian arena.
Eric Hughey is a third year law student at Michigan State College of Law. He is
planning on practicing in his home state of Michigan in the field of social security
disability law.
Jourdan Rasmussen is a third year JD student at Michigan State University
College of Law from the great state of Michigan. Jourdan has previously served
as a law clerk for the Association of Fish and Wildlife Agencies in Washington,
D.C. He has traveled to 46 states and is looking forward to a future in
environmental and wildlife law, wherever the next endeavor may lie.
Samantha Reasner is a second year student at Michigan State University
College of Law. Originally from northern Michigan, Samantha is interested in
Agricultural and Environmental Law. Samantha will spend the summer of 2015
interning in the legal services division of the Michigan Department of
Agriculture and Rural Development.
Ethan Shirley is an EMT, biologist, and educator. He is a J.D. candidate in the
College of Law and a M.S. candidate in the Department of Fisheries and Wildlife
at Michigan State University. His research looks at environmental laws,
compliance with environmental laws and alternate means of enforcement in the
Pantanal region of Brazil.
Jason Statler is a rising 3L at Michigan State University School of Law. He is
interested in practicing in his home state of Pennsylvania in the field of
Insurance Defense.
Erin Elizabeth Sweeney is a third year student at Michigan State University
College of Law pursuing a career in commercial negotiation and dispute
resolution. Her substantive practice interests include energy, oil and gas, and
water law. Prior to attending law school, she taught English in Croatia at both the
M.A. and B.A. levels on a 2011-2012 Fulbright Fellowship. Ms. Sweeney will
take the July 2015 Texas bar exam.
Justin Walton is a joint JD/MBA candidate. His legal studies have focused on
business law. Justin's MBA focus is Supply Chain Management. Prior to
entering law school, Justin worked for a biodiesel fuel company, which gave him
exposure to environmental concerns in the energy field. Justin will spend the
summer of 2015 interning at Dell, Inc. as a Graduate Senior Advisor. Upon
graduation in 2016, Justin plans to pursue a career in sourcing and
procurement.
About the WILDLIFE LAW CALL
Professor Carol Bambery assigned these case summaries
to her Spring 2015 Legal Issues with Wildlife and Energy
Development class at Michigan State University College of
Law as a class project. The students chose recent fish- and
wildlife-related decisions - most with an energy nexus issued by federal courts and summarized them for this
newsletter. The Wildlife Law Call does not report every
recent case, but we hope that you will find the included summaries interesting and informative.
Prof. Bambery is general counsel for the Association of Fish & Wildlife Agencies (AFWA) in
Washington, DC. AFWA is a professional association; its members are the fish and wildlife
agencies of the 50 U.S., U.S. territories, some Canadian provinces and Mexican states, as well as
some U.S. federal agencies. AFWA staff members Parks Gilbert and Laura MacLean assisted with
the production of the Wildlife Law Call.
Association of Fish & Wildlife Agencies
202-838-3460
[email protected]
www.fishwildlife.org
The Voice of Fish & Wildlife Agencies
Copyright © 2015. All Rights Reserved.
Bald Eagle Photo by George Andrejko.