Bird group sues Interior over extension of eagle ‘take’ permits to 30 years

Source: Scott Streater, E&E reporter • Posted: Friday, June 20, 2014

A leading bird conservation group today filed a federal lawsuit against the Obama administration challenging a rule for wind and other energy projects that permits injuring, killing or disturbing bald eagles for up to 30 years.

The American Bird Conservancy filed the lawsuit against the Interior Department and the Fish and Wildlife Service in the U.S. District Court for the Northern District of California in San Francisco. The suit challenges the new rule allowing Fish and Wildlife to grant programmatic incidental take permits to wind farms, transmission projects and other long-term energy operations for a much longer period than the previous five-year term.

ABC asserts the revised eagle “take” rule announced in December 2013 and implemented earlier this year is riddled with violations of federal law, including the National Environmental Policy Act, the Endangered Species Act, and the Bald and Golden Eagle Protection Act, according to the 23-page complaint filed on behalf of ABC by the Washington, D.C.-based public interest law firm Meyer Glitzenstein & Crystal.

ABC sent a formal notice of intent to sue in April to Interior Secretary Sally Jewell and FWS Director Dan Ashe saying the group planned to take legal action against Interior and Fish and Wildlife over the revised rule (E&ENews PM, April 30).

ABC states in the complaint, which names Jewell and Ashe as defendants, that the rule “was adopted in flagrant violation of the National Environmental Policy Act because the Service did not prepare any document analyzing the environmental impacts of the rule change, as required by NEPA and its implementing regulations.”

In addition, the rule “subverts the basic eagle protection purposes of [the Bald and Golden Eagle Protection Act] and eliminates crucial procedural and other safeguards for eagle populations without any adequate explanation,” according to the complaint.

The group is asking the court to throw out the revised eagle take rule and require Fish and Wildlife to perform the necessary NEPA analysis in the form of an environmental impact statement or an environmental assessment of the rule’s impacts on eagle populations.

Fish and Wildlife’s decision not to do this initially, “we think, is illegal and not a particularly wise move from a policy standpoint,” said Eric Glitzenstein, one of the lead attorneys representing ABC with Meyer Glitzenstein & Crystal.

Gavin Shire, a Fish and Wildlife spokesman in Arlington, Va., said the service does not comment on pending litigation. But the service has said the rule revision represented an administrative change that did not require a full NEPA analysis.

The American Wind Energy Association has argued that the industry takes enormous steps to protect birds, more so than other industries, and that when it comes to eagles, it has been unfairly singled out. AWEA has pointed to studies that show eagle populations over the last 40 years have stabilized and that the wind power industry conducts more pre- and post-construction studies to guard against impacts to eagles and other sensitive avian species than any other energy sector.

The wind industry says such incidental take permits give it more regulatory certainty while allowing it to incorporate measures that help protect eagles. And the industry has argued that it makes no sense not to have an eagle permitting system that covers the typical 30-year life of an operating commercial-scale wind farm.

But the lawsuit comes as Fish and Wildlife is expected to announce tomorrow that it plans to conduct further environmental analysis of the eagle take process as part of its ongoing effort to review and revise policies for managing eagles as wind power continues to expand across the country.

A Fish and Wildlife spokeswoman confirmed that the service will hold five informational meetings across the country later this summer but would not discuss the effort in detail until after tomorrow’s announcement.

Michael Hutchins, national coordinator of ABC’s Bird Smart Wind Energy Campaign, said that the group wants more information about the public hearings and additional review but that those things do not lessen the need for today’s lawsuit.

“This is a post-hoc effort to go back and do NEPA after the fact,” Hutchins said in an interview. “This kind of indicates to me that they know there’s a weakness” in the revised eagle take rule.

The Fish and Wildlife rule at issue in the lawsuit amended an eagle permitting program established in 2009 that initially allowed the five-year take permits only if disturbing, harming or killing eagles was unavoidable.

The take permits are to be issued only to applicants that commit to strict adaptive-management measures that include site-specific steps to reduce impacts to eagles. Fish and Wildlife would review the permits and the conservation measures every five years.

But Hutchins said the five-year reviews of the permits would be part of an internal process that would not involve public participation.

He also noted that the 2009 rule establishing the five-year take permits was promulgated after Fish and Wildlife conducted an environmental assessment.

“Obviously, we are worried about populations of eagles over a 30-year period when inadequate science has been used to show that this rule will not result in a significant loss of eagles,” Hutchins said. “There’s much uncertainty here because they did not go through the NEPA analysis and engage the public to begin with.

“These birds don’t belong to the wind energy industry; they belong to the American public and are held in trust for future generations,” he added.