Bald and Golden Eagles Victorious: Court Invalidates 30-Year “Eagle Take” Rule (feds vs. federal law)

“The Obama administration crafted the [court invalidated] rule to offer wind farms a legal path to accidentally kill eagles, as long as they agree to a suite of mitigation and monitoring requirements to ensure eagle populations remain stable. But it hit major opposition from bird advocacy groups, which argued FWS lacked the resources or know-how to ensure the permits actually benefit the nation’s official bird and its golden kin.”

– Phil Taylor, “Court Strikes Down FWS’s Eagle ‘Take’ Rule,” E&E News, August 12, 2015.

The American Bird Conservancy, [1] where I am director of public relations, issued the following press release yesterday in response to a U.S. District Court ruling that the federal government should follow federal environmental law.

(Washington, D.C., August 12, 2015) The U.S. District Court, Northern District of California, in San Jose has ruled that the Department of the Interior violated federal laws when it created a final regulation allowing wind energy and some other companies to obtain 30-year permits to kill protected Bald and Golden Eagles without prosecution by the federal government.

The American Bird Conservancy (ABC), a plaintiff in the lawsuit, hailed the decision. “We are pleased that the courts agreed with us that improper shortcuts were taken in the development of this rule,” said Dr. Michael Hutchins, Director of ABC’s Bird Smart Wind Energy Program. “The court found that important laws meant to protect our nation’s wildlife were not properly followed by the U.S. Fish and Wildlife Service, putting Bald and Golden Eagles at greater risk.”

The court wrote: “… substantial questions are raised as to whether the Final 30-Year Rule may have a significant adverse effect on bald and golden eagle populations.”

In particular, the courts cited a lack of compliance with the National Environmental Protection Act (NEPA). “We’re ready to work with the U.S. Fish and Wildlife Service to conduct the required NEPA analysis and formulate a better system to protect eagles from poorly-sited wind energy projects,” said Hutchins. “We must come up with a better system to assess the potential risks to birds and bats prior to a project’s siting and construction and to track and mitigate project impacts post-construction.”

The previous “eagle take” rule, adopted in 2009, provided for a maximum duration of five years for each permit to kill eagles. A key part of the court’s ruling held that:  “… FWS has failed to show an adequate basis in the record for deciding not to prepare an EIS (Environmental Impact Statement) — much less an EA (Environmental Assessment) — prior to increasing the maximum duration for programmatic eagle take permits by sixfold.”

“ … While promoting renewable energy projects may well be a worthy goal,” the ruling continued, “it is no substitute for the [agency’s] obligations to comply with NEPA and to conduct a studied review and response to concerns about the environmental implications of major agency action. … Accordingly, the Court holds that FWS violated NEPA’s procedural requirements and that the Final 30-Year Rule must therefore be set aside and remanded to FWS for further consideration.”

The court cited concerns that had been raised by FWS staff during development of the 30-year eagle rule, stating: “The record [in the case] bolsters the Court’s conclusion, as FWS’s failure to adequately ‘address concerns raised by its own experts’ is cause for the Court to find a NEPA violation.”

ABC filed the lawsuit on June 19, 2014 in federal court against the Department of the Interior, alleging multiple violations of federal law in connection with the December 9, 2013 rulemaking. ABC contended that DOI violated the National Environmental Policy Act (NEPA), the Bald and Golden Eagle Protection Act, and other statutes.

ABC believes that wind energy and other renewable energy sources can be encouraged without putting Bald and Golden Eagles, and other protected wildlife, at risk. Proper siting of turbines is critical: New ABC-funded research has revealed that more than 30,000 wind turbines have been installed in areas critical to the survival of federally-protected birds in the United States and that more than 50,000 additional turbines are planned for construction in similar areas.

“The U.S. Fish and Wildlife Service is one of ABC’s most important partners,” said ABC President George Fenwick. “We collaborate frequently, share many goals, and have enjoyed many successes together. However, FWS is encountering unprecedented financial constraints that lead to shortcuts and poor decisions. We hope that this court decision shines a light on the need for the Service to be fully empowered to do the job it is mandated to do. Our nation’s wildlife – and the agency appointed to protect it – deserve nothing less.”

NOTE: ABC is represented by the Washington, D.C. public interest law firm of Meyer Glitzenstein & Crystal.

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ABC’s efforts to establish Bird Smart wind energy in the U.S. are made possible in part by the generous support of the Leon Levy Foundation.

[1] American Bird Conservancy is the Western Hemisphere’s bird conservation specialist—the only organization with a single and steadfast commitment to achieving conservation results for native birds and their habitats throughout the Americas. With a focus on efficiency and working in partnership, we take on the toughest problems facing birds today, innovating and building on sound science to halt extinctions, protect habitats, eliminate threats, and build capacity for bird conservation.