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Tuesday
Mar182014

Cape Wind Court Remands on ESA Claims, Denies MBTA Claim

A federal district court has issued an 88-page split decision in the litigation challenging federal approvals of the Cape Wind project in Nantucket Sound.  On Friday, the U.S. District Court for the District of Columbia granted summary judgment in favor of the federal defendants and developer Cape Wind Associates on all but two claims, rejecting numerous arguments advanced by a large group of project opponents that had been consolidated into one suit.  However, as a result of the plaintiffs’ success on those two claims, both of which were based on the U.S. Endangered Species Act (ESA), the matter has been remanded to the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) for further action before the Cape Wind project can go forward.

The Court found that FWS violated the ESA by not independently determining that curtailment of turbine operations was not a reasonable and prudent measure to require of the project.  The record contained the agencies’ reasoning behind not requiring curtailment (it would undercut the project purpose and scope by significantly reducing electricity generation), but the reasoning was attributed to the Bureau of Ocean Energy Management (BOEM) and Cape Wind, not to FWS.  The Court found that the ESA requires FWS to make that determination independently.  This may be a case of form over substance, with the defect curable on remand by some wordsmithing. 

Potentially more problematic was that the Court found that NMFS violated the ESA by not issuing an incidental take statement related to endangered right whales.  NMFS found that the project was “not likely to adversely affect right whales and not likely to jeopardize the continued existence of right whales” but did not categorically state that take would not occur.  The Court held that, because incidental take “may occur,” NMFS was required to include an incidental take statement with its biological opinion.  The significance here is that, in the context of formal consultation, anytime take of a listed species “may occur,” no matter how unlikely, the Court has found that it is arbitrary and capricious not to issue an incidental take statement. 

However, perhaps of most significance to other wind power developers was the Court’s denial of plaintiffs’ claim that BOEM violated the Migratory Bird Treaty Act (MBTA) by approving the Cape Wind project, even though it was acknowledged that the project, once operational, was likely or even assured to result in take of protected migratory birds.  The Court stopped short of finding that the MBTA never applied to an agency acting in a regulatory capacity, as in this case with BOEM approving the activity of a third party that would result in take of birds protected by the MBTA.  Rather, the Court found that there was not a sufficiently reasonable certainty that take under the MBTA would occur because the project has yet to be built, stating: “Even if the taking of migratory birds takes place at some point in the future, it is clear that no such taking has yet occurred and is not imminent at this point because construction of the Cape Wind project has not begun and the wind turbine generators that might take migratory birds are not operational.”

This is the second case in which a court has addressed the application of the MBTA to the federal approval of a wind power project.  This fall the U.S. District Court for the Southern District of California in Protect Our Communities Foundation v. Salazar rejected a similar MBTA claim by wind power opponents. 

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