Lawsuit filed over federal easing of eagle ‘take’ rule for wind projects

Saying that the U.S. Fish and Wildlife Service arbitrarily moved to aid the wind power industry, the American Bird Conservancy and other parties filed a June 19 lawsuit over “take” permits for protected birds.

In the lawsuit, filed at the U.S. District Court for the Northern District of California, the plaintiffs are challenging a final nationwide regulation promulgated by the U.S. Fish and Wildlife Service and the U.S. Department of the Interior in December 2013 that extended the maximum term for programmatic permits to kill or otherwise “take” bald and golden eagles from five years to thirty years.

“This major rule change – the ‘thirty-year eagle take rule’ – applies to industrial activities of all kinds that incidentally take federally protected eagles in the course of otherwise lawful activities but, as acknowledged by the Service, was promulgated specifically to respond to the wind power industry’s desire to facilitate the expansion of wind energy projects in areas occupied by eagles,” said the lawsuit.

The rule was adopted in “flagrant violation” of the National Environmental Policy Act (NEPA) because the Service did not prepare any document analyzing the environmental impacts of the rule change, as required by NEPA and its implementing regulations, the lawsuit said. In addition, it said the rule change violates the Bald and Golden Eagle Protection Act (BGEPA) and the Administrative Procedure Act because the rule subverts the basic eagle protection purposes of BGEPA and eliminates crucial procedural and other safeguards for eagle populations without any adequate explanation.

The lawsuit asks that the regulation be vacated and remanded to the federal agencies for compliance with federal law.

Only four years after determining that a maximum five-year permit term was essential to protect eagles, the FWS in December 2013 made the change to 30 years. “In lieu of permit renewal and potential public input through the NEPA process every five years, the new rule simply provides that the Service will conduct its own internal review every five years, with no provision for public comment or even any assurance that the Service’s internal analysis will be made available to the public,” the lawsuit added. “The preamble to the thirty-year take rule leaves no doubt that that the six-fold increase in the maximum duration of permits and the significant weakening of public review and comment on BGEPA permitting decisions was adopted at the behest of industry and specifically the wind power industry, which has claimed that the shorter permit duration was somehow impeding the expansion of the industry in eagle habitat, although no empirical data were presented in the preamble to the rule to support that contention.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.