D.C. Circuit Remands BOEM Cape Wind Lease under NEPA and ESA, Punts on MBTA Challenge

The U.S. Court of Appeals for the D.C. Circuit has dealt another setback to the Cape Wind offshore wind power project by holding yesterday in Public Employees for Environmental Responsibilities v. Hopper that the Bureau of Ocean Energy Management (BOEM) and the U.S. Fish and Wildlife Service (USFWS) violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) in approving Cape Wind’s lease on federal land in Nantucket Sound.

However, the Court declined to rule on the more controversial question of whether BOEM’s regulatory approval of Cape Wind violated the Migratory Bird Treaty Act (MBTA) despite the fact that the parties stipulated that operation of the project would result in incidental take of protected migratory birds. The Court also declined to rule on the larger issue of whether the MBTA applies to incidental take at all.

The D.C. Circuit referenced the 9th Circuit’s recent holding in Protect our Communities Foundation v. Jewell, which rejected the same “novel argument” that the MBTA prohibits federal agencies from authorizing activities that may or will result in prohibited take under the MBTA (or the Bald and Golden Eagle Protection Act), but chose not to engage the question in any substance. Instead, in a lengthy footnote 11, the Court sidestepped project opponents’ MBTA claim based on statements made by BOEM and Cape Wind at oral argument to the effect that Cape Wind would obtain an MBTA permit from USFWS prior to operation of the project. The Court acknowledged that USFWS is currently “considering” whether to adopt regulations that would allow issuance of an MBTA incidental take permit and that there is currently no established process for obtaining such a permit, but was apparently untroubled by those details.

The D.C. Circuit did note without comment that USFWS’s “longstanding position has been that the [MBTA] also applies to harm that occurs incidental to, and which is not the purpose of, an otherwise lawful activity.” The Court did not address the fact that this longstanding USFWS position is inconsistent with the law in the jurisdictions of the Fifth, Eighth and Ninth Circuit Courts of Appeals, which have held that the MBTA only applies to intentional take. The Tenth Circuit and, to a lesser extent, the Second Circuit have gone the other way and upheld the application of the MBTA to incidental take.

It is possible that this circuit split may be resolved before too long by the Supreme Court, but for the time being the D.C. Circuit has decided that it does not want to join the discussion.

And Cape Wind will continue to plod forward, Terminator-like in its apparent willingness and ability to withstand consecutive bludgeonings from opponents, utilities, regulators and the judiciary.