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Court Issues Recommended Decision Denying MBTA and BGEPA Claims Against Sisk Wind Power Project  

A U.S. Magistrate Judge in Maine Federal District Court issued a recommended decision yesterday denying all claims in a suit brought by opponents of TransCanada’s Sisk Mountain wind power project.  Plaintiff Friends of the Boundary Mountains had challenged the U.S. Army Corps’ issuance of the project’s Clean Water Act Section 404 permit, claiming, among other things, that the permit issuance violated the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA) because the project was likely to result in take under those statutes.

U.S. Magistrate Judge John C. Nivison disagreed, recommending that the Court grant summary judgment in favor of the Army Corps and TransCanada on all counts.  With respect to the MBTA, the Court found that, “Given the attenuated relationship between the Corps’ permitting process and any potential harm to migratory birds, not surprisingly, Plaintiff does not offer any persuasive precedent to support its attempt for private-party enforcement of the MBTA.”  Friends of the Boundary Mountains v. U.S. Army Corps of Eng’rs, No. 12-357, at 12 (D. Me. April 23, 2014).  The Court also found that several recent decisions by other federal district courts denying similar claims persuasively supported “the conclusion that a take permit was not required prior to the Corps’ issuance of the Section 404 permit, both in relation to the MBTA take permits and [BGEPA] take permits.” n.6.  Magistrate Judge Nivison went even further to state that, because the MBTA and BGEPA do not contain citizen suit provisions, the plaintiff could not pursue independent claims against the Army Corps under those statutes, which are administered by the U.S. Fish and Wildlife Service and not by the Army Corps.  Id. at 11-15.

TransCanada is represented in the litigation by Verrill Dana attorneys Juliet Browne and Gordon Smith.



Courts Add to Denials of MBTA/BGEPA Claims against Wind Power

Two more courts have ruled against wind power opponents’ claims that federal agencies violated the Migratory Bird Treaty Act (MBTA) by authorizing wind energy projects without first obtaining take permits from the U.S. Fish and Wildlife Service. 

Protect Our Communities Foundation v. Jewell, 2014 WL 1364453 (S.D. Cal. 2014) granted summary judgment in favor of the Bureau of Land Management and Tule Wind LLC, a subsidiary of Iberdrola Renewables, on all counts.  Tule Wind is a 62-turbine project to be located on BLM land in Southern California.  Plaintiffs claimed, among other things, that the BLM violated the MBTA and Bald and Golden Eagle Protection Act (BGEPA) by not obtaining permits under those statutes prior to authorizing the development of Tule Wind. The court denied plaintiffs’ MBTA and BGEPA claims, holding that, “Federal agencies are not required to obtain a permit prior to acting in a regulatory capacity to authorize activity, such as development of a wind energy facility, that may incidentally harm protected birds.”  Id. at *21.   

Protect Our Communities Foundation v. Chu, 2014 WL 1289444 (S.D. Cal. 2014) rejected the same MBTA and BGEPA claims brought against the U.S. Department of Energy and Energia Sierra Juarez U.S. Transmission (ESJ), an entity planning to construct a transmission line spanning the U.S.-Mexico border that is intented to connect a proposed wind power facility in Baja, Mexico to the U.S. grid.  

With the Tule Wind and ESJ decisions, all four courts that have addressed wind power opponents’ claims under the MBTA and BGEPA have denied those claims.  See Pub. Employees for Envtl. Responsibility v. Beaudreu, 2014 WL 985394 (D.D.C., March 14, 2014) (holding that U.S. Bureau of Ocean Energy Management did not violate MBTA by approving the offshore Cape Wind project without first obtaining a permit from U.S Fish and Wildlife Service); Protect Our Communities Found. v. Salazar, 2013 WL 5947137 (S.D. Cal. 2013) (holding that project opponents failed to demonstrate that a permit was required under the MBTA when the BLM approved a 112-turbine wind power project in Southern California). 


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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