D.C. Circuit Flips USFWS for Issuing ITP to Ohio Wind Power Project with 6 M/S Cut-in Speed

The U.S. Court of Appeals for the D.C. Circuit has invalidated the issuance by the U.S. Fish and Wildlife Service (USFWS) of an incidental take permit (ITP) under Section 10 of the Endangered Species Act for take of Indiana bats by the 100-turbine Buckeye Wind project in Ohio.

The Circuit Court held that USFWS violated the National Environmental Policy Act (NEPA) by failing to consider a reasonable range of alternatives because it did not consider an alternative proposed by project opponents that the wind power project curtail operations with cut-in speeds of 6.5 meters per second. The ITP was issued based on the condition that the project curtail operations at 6 meters per second, the alternative proposed by Buckeye Wind.

In its NEPA analysis USFWS had considered alternatives including no action, curtailment at 5 meters per second, curtailment at 6 meters per second (Buckeye Wind’s proposal), and nighttime shutdown of all turbines at all wind speeds. USFWS argued that consideration of curtailment at 6.5 meters per second was not necessary because the agency does not need to consider “an infinite array of potential protective measures.”

However, the Court held that USFWS needed to consider at least one economically feasible alternative that was more protective than Buckeye Wind’s proposal of 6 meters per second. The lesson here apparently being that a project applicant subject to NEPA should start with a lowball proposed alternative rather than the industry standard (e.g. 6 meters per second curtailment of wind turbines for protection of bat species), because a court will invalidate a NEPA analysis that does not consider a more protective and economically feasible alternative to what the applicant has proposed.

The D.C. Circuit’s remand of Buckeye Wind’s ITP is the second time in as many months that it has flipped an agency approval of a wind power project based on a NEPA violation. In July the Court sent Cape Wind back to the drawing board when it held that the Bureau of Ocean Energy Management violated NEPA by relying on inadequate geophysical and geotechnical surveys.