Public Employees for Environmental Responsibility v. Hopper

The D.C. Circuit reversed and remanded a lower court decision that the Bureau of Ocean Energy Management (BOEM) complied with NEPA and that FWS complied with the ESA in connection with a wind energy project on Nantucket Sound. Environmental groups had filed suit against a number of agencies alleging that they had violated several federal statutes, including NEPA, the ESA, the Migratory Bird Treaty Act, and the National Historic Preservation Act, in allowing the project to move through the regulatory approval process. A district court dismissed the claims, ruling in favor of the government. But the appellate court disagreed with regard to two claims. First, it held that BOEM's EIS, prepared as part of its decision to issue the lease for the project, failed to adequately assess the seafloor and subsurface hazards of the Sound. The court also held that FWS failed to properly consider measures to minimize harm to migrating birds. FWS' draft incidental take statement had recommended "feathering," a process by which the windmills would be temporarily turned off during poor visibility periods to reduce the risk of collision by birds flying through the wind farm. But it chose to exclude feathering in the final statement, despite submissions from the groups recommending that such measures be included. FWS' decision to disregard the submissions was arbitrary and capricious. The court, therefore, vacated both the EIS and the incidental take statement.