Ruling reversed and affirmed in wind appeal

By Nick Walton - [email protected]

A decision in the U.S. Court of Appeals, District of Columbia Circuit, ordered a district court’s ruling be reversed in part and affirmed in part Aug. 5 in a case related to the Buckeye Wind project.

In July 2013, the U.S. Fish and Wildlife Service approved a habitat conservation plan and issued an “incidental take permit” to Buckeye Wind LLC. The permit allowed for the “take” of particular number of endangered Indiana bats at the proposed wind turbine project.

To offset the loss of Indiana bats, project developer EverPower was to follow the approved habitat conservation plan designed specifically for the Indiana bat.

A U.S. District Court judge ruled against citizen group Union Neighbors United’s (UNU) appeal against the issuance of the permit in March 2015. UNU appealed to the United States Court of Appeals for the District of Columbia Circuit on May 13, 2015.

The case was argued on March 8.

In the opinion for the court filed by Circuit Judge Robert L. Wilkins, the court states UNU claimed the wildlife service failed to comply with its obligations under the National Environmental Procedures Act (NEPA) and failed to make required findings under the Endangered Species Act (ESA).

The court states UNU also contended that the wildlife service failed to consider a reasonable range of alternatives before issuing the permit. With regard to the ESA, UNU claimed the wildlife service applied the incorrect standard in finding that Buckeye Wind “to the maximum extent practicable, minimize(d) and mitigate(d) the impacts of such taking.”

“We conclude the (wildlife) service failed to comply with its NEPA obligations when it failed to consider an economically feasible alternative that would take fewer bats than Buckeye’s proposal, and we reverse the district court on that point,” Wilkins stated. “However, we also conclude that the service’s interpretation of the ESA is entitled to deference. In light of its interpretation, the service complied with its ESA obligations, and we affirm the judgment of the district court on Union Neighbors’ ESA claims accordingly.”

Attorney W. William Weeks argued the case and filed briefs for UNU in the case. In a statement to the Daily Citizen on Monday, Weeks stated the decision is important because it addresses a question that is fundamental to the environmental impact statement process and that question is what constitutes a reasonable range of alternatives.

“The court has ruled that a federal agency cannot decide to ignore a reasonable alternative that would reduce a project’s impact on wildlife simply because the agency deems an alternative it has considered good enough,” Weeks stated. “Nor can it meet its obligations under the National Environmental Policy Act by bracketing its obligations under the National Environmental Policy Act by bracketing its preferred alternative with alternatives that it knows are not viable.”

Weeks stated the court’s opinion on the ESA is more complex.

“The court makes some clear findings about what the act requires,” Weeks states. “Those finding will be useful everyone. On the other hand, the court has specifically declined to decide whether a feasible reduced impact alternative would require that the service revisit its Endangered Species Act decision.”

In a statement from EverPower issued on Monday, project manager Jason Dagger expressed how the ruling impacts the project.

“We will be reviewing the ruling in detail but we are pleased that the court validated our compliance with the Endangered Species Act’s permit issuance criteria,” Dagger stated. “Obviously we are disappointed with the conclusion on the NEPA analysis but expect that can be resolved in due course and do not see this impacting our ability to proceed with the Buckeye Wind Farm.”

Under development since 2006, the Buckeye Wind project proposed to construct more than a combined 100 turbines in Champaign County through two phases of the project.

Last month, oral arguments on an amendment to the project were held before the Ohio Supreme Court marking the third portion of the project to be brought before the court for oral arguments.

UNU is also appealing another portion of the project in the Ohio Supreme Court. Last October, UNU appealed the Ohio Power Siting Board’s decision to approve an extension in the first phase of the project, moving the deadline for construction to begin from March 2015 to May 2018.

By Nick Walton

[email protected]

Nick Walton can be reached at 937-652-1331 Ext. 1777 or on Twitter @UDCWalton.

Nick Walton can be reached at 937-652-1331 Ext. 1777 or on Twitter @UDCWalton.