Feds Must Consider All Reasonable Alternatives in Endangered Species Analysis

Recently, the D.C. Circuit threw out the United States Fish & Wildlife Service’s (“FWS”) approval of a conservation plan to reduce the impacts of a proposed wind turbine farm on endangered Indiana bats. In Union Neighbors United Inc. v. Jewell, et al., Docket No. 15-5147, the Court of Appeals held that FWS failed to consider all reasonable alternatives to Buckeye Wind LLC’s (“Buckeye”) plan to limit bat injuries and deaths resulting from encounters with the proposed turbines as required by the National Environmental Policy Act (“NEPA”).

Buckeye is proposing to construct a 100 turbine, 250 megawatt wind energy facility in Champaign County, Ohio. The site of the proposed facility includes areas deemed to be suitable habitat for the federally-listed Indiana bat and is likely to affect bat populations in the area, including causing bat deaths due to the animals flying into moving wind turbine blades. As a result of these likely impacts, Buckeye was required to obtain an “incidental take” permit pursuant to the Endangered Species Act allowing Buckeye to kill a set number of bats annually.

Buckeye submitted an application for an incidental take permit to FWS, which included a habitat conservation plan. The conservation plan proposed to site turbines away from known Indiana bat roosting locations and to adjust so-called “cut-in speeds” such that approximately 5.2 bats would be killed by the turbines each year. “Cut-in speeds” refer to the wind speeds at which turbines start turning, which can be controlled. Buckeye projected that its proposed cut-in speed would reduce its revenues by nearly $1 million per year. Alternative plans, including shutting the turbines down at night, were also considered by FWS, but would have resulted in more severe losses.

Ultimately, however, in a challenge to the conservation plan brought by Union Neighbors United Inc. (“UNU”), the D.C. Circuit held that FWS failed to comply with the requirements of the NEPA. Namely, the Court found that FWS did not consider an alternative conservation plan that was both economically feasible and more protective of Indiana bats, such as the slightly increased cut-in speed suggested by UNU. In response, the government argued that it should not be required to analyze an “infinite array of potential protective measures.” In rejecting that argument, the Court held that all that was required was a review of a mid-range approach which would take fewer bats but allow the project to move forward, which FWS failed to do.

This decision could have broader repercussions for any agency action subject to review under NEPA. At a minimum, applicants for take permits from FWS should work with the agency to ensure that it conducts an adequate review of alternatives to the applicants’ proposed conservation plans. More generally, any applicant to a federal agency conducting a NEPA review should make every effort to confirm that the agency satisfies its review obligations. As demonstrated by Union Neighbors, an inadequate NEPA review threatens the validity of federal agency approvals, and could delay or otherwise hinder development projects as a whole.