Jump to Navigation
Jump to Content

Public Employees for Environmental Responsibility v. United States Fish & Wildlife Service

ELR Citation: 46 ELR 20065
Nos. 14-1807, (D.D.C., 03/29/2016) (Bates, J.)

A district court held that FWS violated NEPA when it reissued two orders authorizing the killing of double-crested cormorants in certain states. FWS issued an EA and FONSI for the orders rather than an EIS. But the EA is insufficient to justify FWS' FONSI because FWS did not take the requisite “hard look” at the orders’ effect on cormorant populations. The EA used four population models to predict the number of breeding pairs of cormorants that would remain if the orders stayed in effect for five more years. But the EA's predictions under each model estimate the impact on the double-crested cormorant population by 2014—not by 2019. Rather than take a “hard look” at the impacts on cormorant populations if the orders were extended through 2019, it appeared that FWS simply lifted the findings from its prior 2009 EA. Nor did FWS consider a reasonable range of alternatives. Even if the EA could be read to incorporate the alternatives considered in the 2003 EIS, the EA confirms that circumstances have changed since the 2003 EIS. Incorporation of a 10-year-old assessment of alternatives from the 2003 EIS therefore could not account for such changes.