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Public Employees for Environmental Responsibility v. Beaudreau

ELR Citation: 44 ELR 20058
Nos. 10-1067, (D.D.C., 03/14/2014) (Walton, J.)

A district court largely upheld several administrative decisions made by federal agencies approving the construction of various aspects of an offshore wind energy project in Nantucket Sound, remanding only two issues to FWS and the National Marine Fisheries Service (NMFS) for ESA violations. Four groups of plaintiffs challenged the decisions, arguing that the various agencies involved violated the APA, NEPA, the ESA, the CWA, and OCSLA, among other statutes. The court agreed that FWS violated the ESA by failing to make an independent determination about whether the "feathering operational adjustment" was a reasonable and prudent measure. This measure would require the temporary and seasonal shut down of wind turbine generators to reduce the risk of collision by certain birds. FWS discarded this option because it was deemed not reasonable and prudent by the U.S. Bureau of Ocean Energy Management. But there is no indication that FWS made an independent determination on this point. The court, therefore, remanded this issue to FWS. The court also agreed that NMFS violated the ESA by failing to issue an incidental take statement with its 2010 biological opinion for North Atlantic right whales. Because an incidental take of right whales may occur, NMFS was required to include an incidental take statement with its biological opinion, and its failure to do so was arbitrary and capricious. But the court granted summary judgment to the federal defendants on the plaintiffs’ remaining claims.