District Court Remands Offshore Wind Project For Failure To Comply With Endangered Species Act

by Perkins Coie

In a decision that has been nearly thirteen years in the making, on March 14, 2014, the U.S. District Court for the District of Columbia ruled that the U.S. Fish and Wildlife Service and U.S. National Marine Fisheries Service failed to meet Endangered Species Act requirements  in approving an offshore wind energy project in Nantucket Sound known as the Cape Wind Project.  Public Employees for Environmental Responsibility v. Beaudreau, D.D.C. Case Nos. 10-1073, 10-1079, 10-1238.    

The case illustrates the types of conflicts that offshore wind energy developers should avoid in the future.

The Proposed Cape Wind Project and the Nantucket Sound

The proposed Cape Wind Project would involve the construction and operation of as many as 130 440-foot tall wind turbine generators and a 10-story tall electrical service platform in an approximately 25-square-mile area on Horseshoe Shoal in Nantucket Sound.  Nantucket Sound is a 30-mile-long by 25-mile-wide sheltered portion of the Atlantic Ocean located just off of the shoreline of Massachusetts, between Cape Cod and the islands of Martha’s Vineyard and Nantucket.

Nantucket Sound is a historically significant body of water.  The National Park Service has deemed it eligible for listing in the National Register of Historic Places as a Traditional Cultural Property because of its cultural significance to the local Wampanoag tribes.  The Sound is surrounded by thousands of properties listed on the National Register, 22 historic districts (including the largest in the nation), and two National Historic Landmarks.  Many other unidentified historic properties exist in and around its waters.

The Sound is also environmentally significant.  It provides important habitat to endangered species of birds, including the roseate tern and piping plover; the area has repeatedly seen very large aggregations of highly endangered North Atlantic right whales; and Horseshoe Shoal serves as habitat for fish, invertebrates, sea turtles, and other animals.  

The Sound is also economically important.  Cape Cod and Martha’s Vineyard are very popular vacation destinations, the waters are known as rich fishing grounds, and busy shipping lanes surround the proposed Project area. 

These uses have made Nantucket Sound one of the most congested bodies of water in the United States, and due to notoriously foggy and rough conditions, it also is one of the most hazardous.  The proposed Project area is in the middle of the existing uses, as shown in the following map depicting fishing vessel traffic from March until September 2007.

The Proposed Cape Wind Project’s Long and Controversial History

Nantucket Sound’s many values have given rise to the intense controversy and opposition that has surrounded the Cape Wind Project.  Since the Project was first proposed in November 2001, numerous groups and individual citizens—including environmental organizations, fishermen, boat captains, the Wampanoag tribes, municipalities, and others—have expressed concern that the Project would conflict with existing uses of the Sound, by harming marine and aviation safety, the environment, and the area’s unique cultural, aesthetic, and historic character.  This opposition has led to many setbacks for the Project over the last 13 years.

The District Court’s Decision

Four lawsuits were filed in 2010 to challenge Project approvals by the Bureau of Ocean Energy Management, FWS, NMFS, and the U.S. Coast Guard.  After over three and a half years of litigation, on March 14, 2014, district court Judge Reggie B. Walton issued a decision addressing the opponents’ claims under the Endangered Species Act, the National Environmental Policy Act, the Migratory Bird Treaty Act, and the National Historic Preservation Act.   

The court ruled in favor of plaintiffs on two ESA issues.  First, the court held that FWS’s ESA review of the Project’s impacts on endangered migratory birds violated the Endangered Species Act.  Specifically, the court found that FWS had failed to make an independent determination concerning the appropriateness of using temporary or seasonal shutdowns of wind turbine generators in order to reduce the risk of collision by endangered birds that migrate through the proposed Project area.  According to the court, the FWS improperly deferred to the judgment of the Project proponent, Cape Wind Association, and BOEM on this point.

The court also found that NMFS failed to meet ESA requirements in its review of the Cape Wind Project’s impacts to endangered right whales.  Specifically, NFMS had failed to issue an incidental take statement regarding endangered right whales even though, as the court found, incidental “take” (or harm to the whales) may occur as a result of the Project.  In light of these ESA violations, the court remanded ESA review to FWS and NMFS for further decision making.

The court ruled in favor of the Project on several other issues arising under the National Environmental Policy Act, the Migratory Bird Treaty Act, the National Historic Preservation Act, and a special law intended to ensure that any offshore energy development in Nantucket Sound protect navigational safety.  The court found that the agencies complied with their obligations under these statutes and that their decisions regarding the Project met the deferential arbitrary and capricious standard applicable to the court’s review. 

Other Permits and Reviews Are Still Required

The court’s ruling on each claim advanced in the lawsuits remains subject to appeal, and an appeal to the U.S. Court of Appeals is highly likely given the controversy that continues to surround the Cape Wind Project. 

In addition to the actions required by the district court’s remand and any other remand that might result from an appeal, additional reviews and permits are required before the Cape Wind Project can proceed with construction. 

For example, while the district court found that the Cape Wind Project did not yet require permits under the Migratory Bird Treaty Act, it acknowledged that such permits may be required before construction or operation that may kill migratory birds may begin. 

The court also acknowledged that under BOEM regulations, additional geological and geophysical surveys must be completed before construction can begin.  These surveys require Incidental Harassment Authorizations under the Marine Mammal Protection Act and must also comply with the Endangered Species Act and other laws.  The surveys, like the ESA reviews required by the court’s remand, may also yield additional information regarding the Cape Wind Project’s impacts, triggering additional review requirements under NEPA, the ESA, and other statutes. 

Additionally, if the Department of Energy decides to issue the Project a federal loan guarantee, that action may require review of many new issues related to the Project that are not addressed in the existing review documents.  The district court’s decision suggests that these new issues could give rise to additional environmental review requirements under statutes like NEPA.  

As the proposed Cape Wind Project enters its teenage years, the controversy and conflicts raised by the proposal will continue to engender intense opposition that could have been avoided from the outset by selecting a project location that did not come into conflict with so many existing uses.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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