30-Year BGEPA Take Permit Invalidated by Federal District Court

The U.S. District Court for the Northern District of California on Tuesday struck down a U.S. Fish and Wildlife Service regulation allowing issuance of 30-year take permits under the Bald and Golden Eagle Protection Act. The court’s holding is a blow, albeit likely temporary, to wind power developers seeking certainty about liability for take of eagles under BGEPA.

The court in Shearwater v. Ashe held that USFWS violated the National Environmental Policy Act by adopting the 30-year permit rule without conducting an environmental impact statement or environmental assessment. USFWS claimed that the rule was “strictly administrative” in nature and therefore fit within the NEPA categorical exclusion for federal actions that have no significant effect on the environment. The court disagreed, citing, among other things, USFWS staff comments that it was a “no-brainer that [FWS] needed to do a NEPA analysis” and that the 30-year permit rulemaking process was a “trainwreck.”

The 30-year take permit framework was adopted by USFWS in December 2013, replacing the previous regulation that allowed issuance of BGEPA take permits for a maximum duration of five years. The increase to 30 years was adopted primarily to address concerns by wind power developers that “the five-year maximum tenure of permits under the Eagle Take Rule is fundamentally unworkable for the industry considering the life of most wind projects is 20 to 30 years.” The court noted that, “[w]hile 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.”

The court remanded to rule back to USFWS, which will presumably revive the 30-year permit program by conducting an EA or EIS to satisfy NEPA’s procedural requirements.