Appeals court ruling bolsters Cape Wind defense — DOJ

Source: Robin Bravender, E&E reporter • Posted: Thursday, June 9, 2016

The Obama administration said today a federal appeals court’s decision knocking down a challenge to a California wind farm supports its arguments in another case involving migratory bird protections.

The Justice Department sent a letter to another federal appeals court that’s weighing a separate lawsuit against the long-stalled Cape Wind offshore wind project planned for coastal Massachusetts. The DOJ urged the Washington, D.C.-based court to agree with their counterparts in California.

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled yesterday that the Interior Department had sufficiently assessed the environmental impacts of Tule Wind LLC’s large wind farm project east of San Diego (Greenwire, June 8).

That court rejected challenges from conservationists, who argued in part that the government failed to properly protect migratory birds from the project.

The 9th Circuit’s decision “directly supports the United States’ arguments” in the case Public Employees for Environmental Responsibility v. Abigail Ross Hopper, which is pending before the U.S. Court of Appeals for the District of Columbia Circuit, DOJ said.

That case involves challenges to the Cape Wind project, which was intended to be the country’s first offshore wind farm but has been plagued by legal and financial problems in recent years.

Challengers contend in the Cape Wind case that the government illegally authorized construction and operation “knowing that this would predictably result in violations” of the Migratory Bird Treaty Act, or MBTA, because the project didn’t yet have permits allowing the incidental “take” of migratory birds.

That was among several arguments Cape Wind’s challengers made during oral arguments in February (Greenwire, Feb. 11).

DOJ pointed to a similar argument rejected by the 9th Circuit that, in the Tule project, the Bureau of Land Management had been “complicit in future conduct … that might result in violations of the MBTA.”

“This Court should join the Ninth Circuit in rejecting Plaintiffs’ arguments,” DOJ told the D.C. Circuit today. In both cases, the administration says, the government “acted in a purely regulatory capacity; it did not engage in any activity that will directly cause the take of migratory birds.”

As a condition of its lease, Cape Wind is required to comply with all applicable laws and regulations, including the MBTA, DOJ said.

Eric Glitzenstein, an attorney representing conservationists challenging the Cape Wind project, responded to the D.C. Circuit today with a letter noting “crucial differences” between the two cases.

Notably, he said, the California project isn’t on a major migratory route for birds, whereas “government counsel admitted at oral argument that many thousands of federally protected birds will inevitably be killed” by Cape Wind turbines.

And while the 9th Circuit indicated that federal authorization of the Tule project requires compliance with the MBTA’s permitting mechanism, the lease for Cape Wind does not require an MBTA permit, Glitzenstein said.