Union Neighbors United, Inc. v. Sally Jewell , 831 F.3d 564 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 8, 2016 Decided August 5, 2016
No. 15-5147
UNION NEIGHBORS UNITED, INC.,
APPELLANT
v.
SALLY JEWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF
THE UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01435)
W. William Weeks argued the cause and filed the briefs
for appellant.
Robert P. Stockman, Attorney, U.S. Department of
Justice, argued the cause for federal appellees. With him on
the brief were John C. Cruden, Assistant Attorney General,
and David C. Shilton, Attorney.
Paul S. Weiland argued the cause for intervenor-appellee
Buckeye Wind LLC. With him on the brief was Steven P.
Quarles.
2
Before: SRINIVASAN, MILLETT and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Buckeye Wind, LLC
(“Buckeye”) wants to build a wind farm in Ohio. However,
that wind farm may pose a danger to the Indiana bat, a
federally listed endangered species. In order to comply with
the Endangered Species Act (“ESA”), Buckeye applied for an
incidental take permit with the United States Fish and
Wildlife Service (“the Service”) and submitted a conservation
plan. The conservation plan provided that Buckeye would
site its turbines away from known Indiana bat habitats, adjust
the turbines’ operating times and speeds, and protect
additional habitat. The Service issued the permit.
Union Neighbors United, Inc. (“Union Neighbors”)
challenges the issue of the permit, claiming that the Service
failed to comply with its obligations under the National
Environmental Procedures Act (“NEPA”) and failed to make
required findings under the ESA. As to the Service’s NEPA
violations, Union Neighbors claims that it failed to consider a
reasonable range of alternatives before issuing the permit.
With regard to the ESA, Union Neighbors claims that the
Service applied the incorrect standard in finding that Buckeye
“to the maximum extent practicable, minimize[d] and
mitigate[d] the impacts of such taking.” 16 U.S.C.
§ 1539(a)(2)(B)(ii). We conclude the 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. 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
3
obligations, and we affirm the judgment of the District Court
on Union Neighbors’ ESA claims accordingly.
I.
A.
The Service’s decision to issue the permit to Buckeye
implicates two statutory schemes: NEPA and the ESA.
NEPA “requires federal agencies . . . to consider and
report on the environmental effect of their proposed actions.”
WildEarth Guardians v. Jewell, 738 F.3d 298, 302 (D.C. Cir.
2013). “NEPA is an ‘essentially procedural’ statute intended
to ensure ‘fully informed and well-considered’
decisionmaking . . . .” New York v. NRC, 681 F.3d 471, 476
(D.C. Cir. 2012) (quoting Vt. Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519, 558 (1978)). “NEPA has twin aims.
First, it places upon an agency the obligation to consider
every significant aspect of the environmental impact of a
proposed action. Second, it ensures that the agency will
inform the public that it has indeed considered environmental
concerns in its decisionmaking process.” Baltimore Gas &
Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983) (internal quotation
marks and citations omitted). An agency meets these aims
through the preparation of an Environmental Impact
Statement (“EIS”) for agency action that will “significantly
affect[] the quality of the human environment.” 42 U.S.C.
§ 4332(C). The EIS must explore, inter alia, “the
environmental impact of the proposed action,” id.
§ 4332(C)(i); “any adverse environmental effects which
cannot be avoided should the proposal be implemented,” id.
§ 4332(C)(ii); and “alternatives to the proposed action,” id.
4
§ 4332(C)(iii). 1 The discussion of alternatives must
“[r]igorously explore and objectively evaluate all reasonable
alternatives.” 40 C.F.R. § 1502.14.
The Service’s decision to issue the permit also required
compliance with the ESA. The ESA provides a means to
conserve endangered or threatened species and their
ecosystems. 16 U.S.C. § 1531(b). The Secretary of the
Interior, who administers the ESA via the Service, lists
endangered and threatened species and designates critical
habitat for those species. Id. § 1533(a)(2)(A); (a)(3)(A). An
endangered species is “any species which is in danger of
extinction throughout all or a significant portion of its range.”
Id. § 1532(6). The ESA prohibits the “take” of an endangered
species within the United States. Id. § 1538(a)(1)(B). “Take”
is a term of art that “means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.” Id. § 1532(19). Although
taking is prohibited, the Service may issue a permit to allow
for an “incidental” taking, meaning the taking is “not the
purpose of[] the carrying out of an otherwise lawful activity.”
16 U.S.C. § 1539(a)(1)(B). In order to receive a permit, the
applicant must submit a conservation plan that complies with
certain specified requirements laid out at 16 U.S.C.
§ 1539(a)(2)(A).
After receiving the application, the Service publishes a
notice and receives comment on whether the permit should
issue. See id. § 1539(a)(2)(B); 50 C.F.R. § 17.22 (endangered
species), 17.32(b)(1)(ii) (threatened species). The Service
“shall issue the permit” if it receives “assurances” that the
1
NEPA’s implementing regulations apply to all federal agencies.
See 40 C.F.R. § 1500.3.
5
conservation plan will be implemented and if it makes the
following five findings:
(i) the taking will be incidental;
(ii) the applicant will, to the maximum extent
practicable, minimize and mitigate the impacts
of such taking;
(iii) the applicant will ensure that adequate
funding for the plan will be provided;
(iv) the taking will not appreciably reduce the
likelihood of the survival and recovery of the
species in the wild; and
(v) the measures, if any, [otherwise required by
the Secretary] will be met.
16 U.S.C. § 1539(a)(2)(B).
The ESA also requires federal agencies to insure that any
action they “authorize[], fund[], or carr[y] out . . . is not likely
to jeopardize the continued existence of any endangered
species . . . or result in the destruction or adverse modification
of habitat of such species.” 16 U.S.C. § 1536(a)(2). If
agency action “may affect listed species or critical habitat,”
the agency must consult with the Service. 50 C.F.R.
§ 402.14(a). Consultation ends with the issuance of a
Biological Opinion, 50 C.F.R. § 402.14(l), which examines
whether the action will jeopardize the listed species or destroy
or adversely modify its habitat as well as “those reasonable
and prudent measures . . . necessary or appropriate to
minimize such impact,” 16 U.S.C. § 1536(b)(4).
Although Union Neighbors brings challenges under
NEPA and the ESA, the Service’s obligations are not identical
under the two statutory schemes. NEPA’s “mandate to . . .
agencies is essentially procedural,” Vt. Yankee, 435 U.S. at
6
558, in this case requiring the Service to consider reasonable
alternatives to the proposed action, 42 U.S.C. § 4332(C)(iii);
40 C.F.R. § 1502.14. The ESA provisions at issue required
the Service to make substantive findings. See Gerber v.
Norton, 294 F.3d 173, 184-85 (D.C. Cir. 2002); see also 16
U.S.C. § 1539(a)(2)(B). Because the standards are not
identical, a failure to comply with one statute does not
necessarily result in a failure to comply with the other.
B.
The Indiana bat is a mouse-eared bat with habitats
throughout the Eastern and Midwestern United States.
During the winter, Indiana bats hibernate underground. 2
Although the largest population of hibernating Indiana bats is
present in Kentucky, Missouri, and Indiana, large colonies
have been found in abandoned underground mines in Illinois,
Ohio, New Jersey, and New York. During the spring, Indiana
bats migrate to their summer habitats. For the Indiana bat, the
“core . . . summer range includes southern Iowa, northern
Missouri, northern Illinois, northern Indiana, southern
Michigan, and western Ohio.” J.A. 254. Within Ohio, the
Service has documented evidence of Indiana bat colonies in
twenty-five counties. These summer ranges provide roosts
for pregnant Indiana bats, which form colonies of 25 to 100
bats, with each bat producing one pup. The bats generally
migrate to winter sites in late August.
Indiana bats were first listed as in danger of extinction in
1967 under the Endangered Species Preservation Act of 1966,
and were listed as endangered under the ESA in 1973
following the law’s enactment. The Indiana bat recovery plan
2
The bats’ hibernating habitat is called “hibernacula.” Appellant
Br. at 3; Fed. Appellees Br. at 6.
7
was first published in 1983 and later updated in 1999 and
2007. Although the overall Indiana bat population declined
from 1965 to 2001, the trend reversed from 2001 through
2011, with the population increasing from 328,526 in 2001 to
424,708 in 2011. The Midwest Recovery Unit, 3 which
includes Ohio, contains a population of approximately
305,297 Indiana bats. Despite these gains, several factors
threaten the Indiana bat population, “including the loss and
degradation of suitable hibernacula; human disturbance
during hibernation; pesticides; . . . the loss, fragmentation, and
degradation of forested habitat,” J.A. 248; and white nose
syndrome, a lethal fungus, id. at 249, 641. Wind farms pose a
potential threat to bats generally, either through collisions
with the turbines or as a result of decompression sickness
caused by pressure changes around rotating turbine blades.
However, as of April 2013, only five known Indiana bat
deaths have been associated with wind farms.
C.
Buckeye seeks to build and operate a commercial wind
energy facility in Champaign County, Ohio. The proposed
facility would include up to 100 wind turbines, each with a
capacity of 1.6 to 2.5 Megawatts (“MW”), with a total
3
“Recovery Units are a tool developed to maintain the distribution
of wide-ranging species that have multiple populations or varying
ecological pressures in different paths of the range . . . . Recovery
Units are geographically or otherwise identifiable . . . .” U.S. Fish
and Wildlife Service, Indiana Bat (Myotis sodalis) Draft Recovery
Plan: First Revision, at 116, April 2007 [hereinafter 2007 Recovery
Plan], available at
https://www.fws.gov/midwest/endangered/mammals/inba/pdf/inba_
fnldrftrecpln_apr07.pdf. The Indiana Bat is grouped into four
geographical Recovery Units: “Ozark-Central, Midwest,
Appalachian Mountains, and Northeast.” Id. at 8.
 8
generating capacity of approximately 250 MW for the facility.
Necessary construction and access infrastructure would be
built as well. The site for the facility is a predominantly
agricultural and rural area where Indiana bats maintain a
presence during the summer maternity season and presumably
traverse during spring and fall migrations to and from their
hibernacula. 4
In 2007, Buckeye began consulting with the Service and
the Ohio Department of Natural Resources Division of
Wildlife to determine the impact that its project would have
on the local wildlife populations. After Buckeye consulted
with the Service for several years and provided a number of
pre-construction field studies, on January 29, 2010, the
Service issued a notice of intent to initiate a scoping 5 period
on the project and solicited public comments. Public scoping
began on May 26, 2010, and the Service again solicited public
comments regarding its intent to prepare a draft EIS and
develop a Habitat Conservation Plan (“HCP” or
“Conservation Plan”) addressing the impact of Buckeye’s
proposed project. 75 Fed. Reg. 29575 (May 26, 2010); see
also 40 C.F.R. § 1506.6(b) (requiring “public notice of
NEPA-related hearings, public meetings, and the availability
of environmental documents”). The Service worked with
Buckeye to draft the HCP, and Buckeye submitted a
completed application for its Incidental Take Permit (“ITP” or
“Permit”) in February 2012.
4
The estimated number of Indiana bats traversing the area during
summer ranged from 10.1 to 2,271.4, and the estimate during
migration is approximately 5,800. J.A. 588.
5
Scoping is the “process for determining the scope of issues to be
addressed and for identifying the significant issues related to a
proposed action” to be addressed in an EIS. 40 C.F.R. § 1501.7.
9
On June 29, 2012, the Service issued a Draft EIS and
Draft HCP for Buckeye’s proposal and solicited public
comments. The Service issued a Final EIS and Final HCP on
Friday, April 18, 2013, and solicited public comments before
a final decision on the permit. In the Final EIS, the Service
identified the issuance of the ITP as the proposed government
action. The Service also explained that the five “purposes
for” the ITP and Final EIS were to: (1) “[r]espond to Buckeye
Wind’s application for an ITP for the . . . Indiana bat to
related Project activities that have the potential to result in
take . . .”; (2) “[p]rotect, conserve and enhance the Indiana bat
and its habitat . . .”; (3) “[p]rovide a means and take steps to
conserve the ecosystems depended on by the Indiana bat”;
(4) “[e]nsure the long-term survival of the Indiana bat through
protection and management of the species and its habitat”;
and (5) “[e]nsure compliance with the ESA, NEPA, and other
applicable Federal laws and regulations.” J.A. 175. Because
of the potential for commercial wind facilities to take a high
number of bats, the Service identified “a need to ensure that
take of Indiana bats is avoided and minimized to the
maximum extent practicable and to ensure that the impact of
any remaining take is fully mitigated” and to “protect the
habitat of Indiana bats.” J.A. 176. In furtherance of these
objectives, the Service identified three options it could take
under the ESA: 1) issue the ITP conditioned upon
implementation of the HCP; 2) issue the ITP conditioned
upon implementation of the HCP and other measures; or
3) deny the application for the ITP. The Service proposed
issuing the Permit subject to Buckeye’s Conservation Plan.
Buckeye’s Conservation Plan proposes numerous steps to
reduce impacts on the Indiana bat and its habitat, as well as
impacts to other non-listed bats and birds. The HCP first
attempts to minimize its impact on Indiana bats through the
Action and Project Areas – those areas that could be affected
10
by the issuance of the Permit – and the locations of individual
turbines. Specifically, the Conservation Plan moves the
Action Area to a location 8 km (5 miles) away from a 2008
discovery of Indiana bats. Additionally, turbines are sited in
already-developed lands where turbines would pose a reduced
risk to the bats, and no turbine is sited within 2.9 km of
known maternity roost trees discovered in 2009. Finally, only
10 of the 100 turbines are sited within habitat where the
turbines would pose the greatest risk of impact to the Indiana
bats.
The Conservation Plan also includes operational
restrictions. Buckeye commits to both “turbine feathering”
and increased “cut-in speeds.” See J.A. 209-11, 757-60.
Feathering is a “reduc[tion in] the blade angle to the wind to
slow or stop the turbine from spinning[] until a designated
cut-in speed is reached.” J.A. 209. Cut-in speeds “are the
wind speed at which rotors begin rotating and producing
power.” J.A. 209. The HCP varies the cut-in speeds up to
6.0 m/s based on the location of the turbine, the season, and
the time of day.
The HCP estimated the impact on Indiana bat mortality
using a collision model that accounted for, among other
factors, population size, flight height, temperature, wind
speed, and movement within the turbine array. Without
implementing any of the operational restrictions, an estimated
6.9 to 25.4 bats would be killed per year. Using the
operational restrictions, an estimated 5.2 bats would be taken
per year, with no more than 26 Indiana bats in a 5 year period.
The Service considered whether the estimated take of 5.2 bats
per year would have significant consequences for the Indiana
bat and determined that it would impact neither the Midwest
Recovery Unit nor a local unit of a single maternity colony.
11
Finally, the HCP outlined additional mitigation measures
related to habitat preservation and conservation funding.
Buckeye intends to acquire and protect 217 acres of suitable
habitat, 6 and to “restor[e] and/or enhance[]” suboptimal
habitat, J.A. 768. Buckeye has also committed $200,000 to
funding research and conservation efforts.
During scoping, the Service identified and considered six
alternatives to Buckeye’s proposal, three of which were
analyzed in depth. 7 The alternatives “were primarily
designed to address the potential for take of Indiana bats” and
focused on the dates, times, and speed of turbine operation.
J.A. 200. In addition to Buckeye’s proposal, the Service
analyzed in depth what it called 1) a maximally restricted
operations alternative (the “Max Alternative”); 2) a minimally
restricted operations alternative (the “Minimal Alternative”);
and 3) a No Action Alternative. J.A. 219-22. The Service
considered the three alternatives and Buckeye’s proposal to
determine the impacts on the Indiana bats and the outcome of
the project. Under the No Action Alternative, the Service
would not issue the ITP, no bats would be taken, and Buckeye
would not construct the project. J.A. 220-21.
6
The habitat is located within seven miles of a Priority 2
hibernaculum. The Indiana bat Recovery Plan categorizes
hibernacula by priority numbers that reflect bat population and the
significance of the habitat to Indiana bat recovery. See 2007
Recovery Plan, supra, at 20. Priority 2 hibernacula “[c]ontribute[]
to the recovery and long-term conservation” of the Indiana bat and
“have a current or observed historic population of 1,000 or greater
but fewer than 10,000 and an appropriate microclimate.” Id.
7
The three alternatives the Service did not analyze in depth were:
1) an ITP of shorter duration; 2) a reduced number of turbines; and
3) an alternate location in Ohio. J.A. 195-96.
12
Buckeye’s plan would take 5.2 Indiana bats per year.
This take would not reduce the long-term viability of a local
colony while also protecting 217 acres of suitable habitat.
Buckeye’s plan would generate 635,823 Megawatt-hours per
year (“MWh/year”) with zero emissions, offsetting 486,000
tons of carbon dioxide. J.A. 385. Buckeye’s proposal would
result in a 2.5% reduction in clean energy production,
$980,000 in lost annual revenues, and $24.5 million in lost
revenues over the ITP term from feathering. J.A. 808.
The Max Alternative would eliminate the take of any bats
but would require shutting down all turbines from sunset to
sunrise when Indiana bats are active. J.A. 220. Because no
bats would be taken, no permit would need to issue. J.A. 219.
However, no additional habitat would be preserved. J.A. 331-
32. Only 491,587 MWh/year would be generated, and 22%
fewer emissions would be reduced. J.A. 386. The maximally
restrictive operations alternative would also result in a 22.7%
reduction in clean energy, $8.65 million in lost annual
revenues, and $216.5 million in lost revenues over the ITP
term. J.A. 808.
The Minimal Alternative would have feathered all
turbines to a cut-in speed of 5.0 meters per second (“m/s”)
during the fall migration period during the hours when the
bats were most active. J.A. 220. This plan would have
resulted in a take of 12 Indiana bats per year and over 300
bats over the life of the project, requiring Buckeye to
purchase additional habitat for mitigation. J.A. 220. The
Minimal Alternative would generate 647,726 MWh/year,
offsetting more emissions. J.A. 386.
In public comments on the Final EIS, Union Neighbors
asked the Service to consider a cut-in speed of 6.5 m/s as
another alternative to Buckeye’s proposed plan. J.A. 1053-
13
55, 1061-84. In response, the Service “d[id] not disagree that
higher cut-in speeds may result in less bat mortality,” but
because of the “infinite combinations of cut-in speeds higher
than the proposed action, or even higher than 6.5 m/s that
could be applied to reduce bat mortality more,” it concluded
the Max Alternative was “a reasonable alternative to consider
in lieu of” Union Neighbors’ proposed speed. J.A. 1055. The
Service reasoned that the difference between Buckeye’s
proposal and the Max Alternative was “not significant,”
making analysis of other variations with higher cut-in speeds
“not necessary.” J.A. 1054.
On July 18, 2013, the Service issued the ITP to Buckeye
as well as its Record of Decision and Statement of Findings.
J.A. 1033. The Service found that Buckeye’s HCP “meets the
statutory criteria for issuance of a . . . Permit, meets
[Buckeye’s] needs, and the []HCP provides an extensive set
of conservation measures that minimizes and mitigates for the
incidental take of the Indiana bat to the maximum extent
practicable.” J.A. 1043. The Service also issued a Biological
Opinion concluding that Buckeye’s proposal “is not likely to
jeopardize the continued existence of the Indiana bat, and is
not likely to destroy or adversely modify designated critical
habitat.” J.A. 1001.
The Service also issued a Statement of Findings under
Section 10(a)(1)(B) of the Endangered Species Act, 16 U.S.C.
§ 1539(a)(1)(B). Specifically, the Service found that the
taking was “incidental to and not the purpose” of Buckeye’s
project, J.A. 1023; that Buckeye had sufficient funding for
mitigation, J.A. 1026; and that the taking was “not likely to
appreciably reduce the likelihood of survival and recovery” of
the Indiana bat, J.A. 1027. The Service also found that the
HCP
14
minimizes and mitigates the impacts of take of
the [Indiana bat] to the maximum extent
practicable . . . because: (1) the HCP’s
minimization and mitigation measures
effectively compensate for the impacts of take
under the plan; [and] (2) the plan provides for
adaptive management to adjust to changing
conditions and adjusts mitigation costs over the
life of the plan to fully fund its
implementation.
J.A. 1025.
On September 20, 2013, Union Neighbors filed a
complaint seeking declaratory and injunctive relief against the
Secretary of the Department of the Interior, the Director of the
Service, and the Regional Director for the Midwest region of
the Service (collectively the “Federal Appellees”), alleging
that the issuance of the ITP was arbitrary, capricious, an abuse
of discretion, and otherwise not in accordance with law under
NEPA and the ESA. Buckeye intervened. The parties cross-
moved for summary judgment, and on March 18, 2015, the
District Court denied Union Neighbors’ motion and granted
the Federal Appellees’ and Buckeye’s motions. Union
Neighbors United, Inc. v. Jewell, 83 F. Supp. 3d 280, 283
(D.D.C. 2015). The District Court concluded that the Service
satisfied the ESA’s permit issuance criteria and that the
Service’s consideration of alternatives under NEPA was
reasonable. 8 Id. at 286-89. Union Neighbors appeals.
8
The District Court also addressed whether Union Neighbors had
standing. Although not raised by the parties, we conclude Union
Neighbors has standing for the reasons stated by the District Court
in its opinion. Union Neighbors United, 83 F. Supp. 3d at 285-86.
15
II.
We review the District Court’s grant of summary
judgment de novo, “as if the agency’s decision ‘had been
appealed to this court directly.’” Gerber, 294 F.3d at 178
(quoting Dr. Pepper/Seven-Up Cos. v. FTC, 991 F.2d 859,
862 (D.C. Cir. 1993)). Because NEPA does not provide a
private right of action, we review the Service’s decision under
the Administrative Procedure Act (“APA”), 5 U.S.C. § 501 et
seq. Theodore Roosevelt Conservation P’ship v. Salazar, 661
F.3d 66, 72 (D.C. Cir. 2011). Likewise, we review the
Service’s ESA findings under the APA. Gerber, 294 F.3d at
178 & n.4. Under the APA, “our task is to determine whether
the agency’s decision was made ‘without observance of
procedure required by law,’ 5 U.S.C. § 706(2)(D), or whether
it was ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,’ id. § 706(2)(A).” Id.
“[A]n agency acts arbitrarily or capriciously if it ‘has relied
on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view or the product of
agency expertise.’” Am. Wildlands v. Kempthorne, 530 F.3d
991, 997-98 (D.C. Cir. 2008) (quoting Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)).
A.
Union Neighbors argues that the Service did not satisfy
NEPA’s requirement that it consider a reasonable range of
alternatives because it failed to include among the alternatives
an economically viable plan that would have taken fewer
Indiana bats than Buckeye’s compliance with the HCP. The
16
Federal Appellees and Buckeye contend that the Service
considered a reasonable range of alternatives.
“Judicial review of agency actions under NEPA is
available ‘to ensure that the agency has adequately considered
and disclosed the environmental impact of its actions and that
its decision is not arbitrary or capricious.’” Del. Riverkeeper
Network v. FERC, 753 F.3d 1304, 1312-13 (D.C. Cir. 2014)
(quoting Baltimore Gas, 462 U.S. at 97-98). “Where an issue
‘requires a high level of technical expertise,’ we ‘defer to the
informed discretion of the [agency].’” Id. at 1313 (quoting
Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377 (1989)).
“Although the standard of review is deferential, we have
made it clear that ‘[s]imple, conclusory statements of “no
impact” are not enough to fulfill an agency’s duty under
NEPA.’” Id. (quoting Found. on Econ. Trends v. Heckler,
756 F.2d 143, 154 (D.C. Cir. 1985)).
The alternatives to the proposed action are “the heart of
the [EIS].” 40 C.F.R. § 1502.14. “Reasonable alternatives
. . . . include[] alternatives that are technically and
economically practical or feasible and meet the purpose and
need of the proposed action.” 43 C.F.R. § 46.420(b). We
review the Service’s selection of alternatives under the “rule
of reason.” Theodore Roosevelt Conservation P’ship, 661
F.3d at 72. “[A]n agency need follow only a ‘rule of reason’
in preparing an EIS, and . . . this rule of reason governs ‘both
which alternatives the agency must discuss, and the extent to
which it must discuss them.’” Citizens Against Burlington,
Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991) (quoting
Alaska v. Andrus, 580 F.2d 465, 475 (D.C. Cir. 1978))
(citation omitted). Under the rule of reason, “as long as the
agency ‘look[s] hard at the factors relevant to the definition of
purpose,’ we generally defer to the agency’s reasonable
definition of objectives.” Theodore Roosevelt Conservation
17
P’ship, 661 F.3d at 72 (quoting Citizens Against Burlington,
938 F.2d at 196) (alteration in original). This is a deferential
standard. WildEarth Guardians, 738 F.3d at 310.
Furthermore, “where a federal agency is not the sponsor of a
project, ‘the Federal government’s consideration of
alternatives may accord substantial weight to the preferences
of the applicant and/or sponsor in the siting and design of the
project.’” City of Grapevine v. Dep’t of Transp., 17 F.3d
1502, 1506 (D.C. Cir. 1994) (quoting Citizens Against
Burlington, 938 F.2d at 197)).
Because “[t]he goals of an action delimit the universe of
the action’s reasonable alternatives,” Citizens Against
Burlington, 938 F.2d at 195, we evaluate the Service’s
alternatives with its stated goals in mind. The Service
explained that the five purposes of its action were:
(1) responding to Buckeye’s application for an incidental take
permit for the Indiana bat; (2) “[p]rotect[ing], conserv[ing]
and enhanc[ing] the Indiana bat and its habitat”;
(3) “[p]rovid[ing] a means and tak[ing] steps to conserve the
ecosystems” upon which the Indiana bat depends;
(4) “[e]nsur[ing] the long-term survival of the Indiana bat”;
and (5) complying with all federal laws and regulations. J.A.
175. At their core, these five purposes reflect “a need to
ensure that take of Indiana bats is avoided and minimized to
the maximum extent practicable and to ensure that the impact
of any remaining take is fully mitigated” and “to protect the
habitat of Indiana bats.” J.A. 176.
The Federal Appellees recognize that the range of
reasonable alternatives was designed to ensure preservation of
the Indiana bat. Throughout their brief, the Federal Appellees
reiterate the importance of an alternative that would reduce
the take of bats while allowing the project to go forward. See
Fed. Appellees Br. at 33 (“The [Max Alternative] reflects the
18
extent of operational restrictions necessary to ensure that the
Project could still be built and operated, but without causing
take.”); id. at 33-34 (explaining how the Max Alternative
provided a “valuable point of comparison . . . to compare the
proposed Project to an alternative which reduced likely
impacts to the Indiana bat to zero but still built the project”
(emphasis omitted)).
The Service considered the following alternatives:
Buckeye’s plan incorporating variable cut-in speeds of up to
6.0 m/s at night from April to October; the No Action
Alternative; the Minimal Alternative with a cut-in speed of
5.0 m/s for the first six hours after sunset from August to
October; and the Max Alternative, which would have turned
off the turbines at night from April to October. Viewing the
range of alternatives through the lens of its stated goals, the
Service failed to consider a reasonable range of alternatives
because it did not consider any reasonable alternative that
would be economically feasible while taking fewer bats than
Buckeye’s proposal. Buckeye’s proposal would take 5.2 bats
per year. The only alternative the Service considered that
would take fewer bats was the Max Alternative. According to
the Federal Appellees, the value of the Max Alternative was
in the fact that it “eliminat[ed] Indiana bat mortality.” Fed.
Appellees Br. at 30. But the Federal Appellees concede that
the Max Alternative is not an economically feasible
alternative. See id. at 33 (noting higher costs and lower
energy production with the Max Alternative). The Service
knew, at a minimum, that Buckeye claimed a full nighttime
option was not economically viable, and it was aware of
other, more viable measures that would still take fewer bats
than Buckeye’s proposal—Union Neighbors repeatedly
suggested using a cut-in speed higher than 6.0 m/s. Yet the
Service failed to consider any higher cut-in speed in either the
Draft or Final EIS. Because the Service in that context failed
19
to consider any economically feasible alternative that would
take fewer Indiana bats than Buckeye’s proposal, it failed to
consider a reasonable range of alternatives.
The unreasonableness of the Service’s failure to consider
an economically viable alternative that would have taken
fewer bats is evident after comparing the Draft EIS and Draft
HCP with the Final EIS and the Final HCP. Attached to the
Draft EIS was Buckeye’s Draft HCP. In its Draft HCP,
Buckeye outlined the additional costs that the Max
Alternative would impose. Proposed Habitat Conservation
Plan & Incidental Take Permit for the Indiana Bat (Myotis
sodalis) for the Buckeye Wind Power Project Champaign
County, Ohio, Vol. 2, Appx. B, at 219 (June 2012),
http://regulations.gov (search for “FWS-R3-ES-2012-0036-
0005”). This analysis is identical to the financial analysis
included in the Final HCP. See J.A. 808. The Federal
Appellees describe this analysis as “explaining why the [Max
Alternative] was not economically viable.” Fed. Appellees
Br. at 33. Yet despite possessing this analysis at both the
Draft and Final EIS stages, the Service considered only the
same four alternatives in both the Draft EIS and Final EIS.
Furthermore, the Service’s own responses to Union
Neighbors’ comments reflect the potential for a higher cut-in
speed to more effectively align with its stated goals.
Following notice of the final EIS, Union Neighbors submitted
a comment asking the Service to consider the impact of a cut-
in speed of 6.5 m/s. Although the Service recognized that
“higher cut-in speeds may result in less bat mortality,” it
rejected analyzing a cut-in speed of 6.5 m/s because the
difference between Buckeye’s proposal and the Max
Alternative was “not significant,” making analysis of other
variations with higher cut-in speeds “not necessary.” J.A.
1054. Considering that one of the purposes behind the
20
issuance of the ITP was to “[p]rotect, conserve and enhance
the Indiana bat and its habitat,” J.A. 175, an analysis of
whether an increased cut-in speed would still allow the
project to go forward while protecting more Indiana bats
would be consistent with this purpose.
The Federal Appellees argue that the Service did not need
to consider another alternative because there “exists an
infinite array of potential protective measures that could be
varied depending on habitat, feathering, cut-in speed, and
season, among many other factors.” Fed. Appellees Br. at 31.
But the Service would not need to examine an “infinite
array,” nor even examine Union Neighbors’ proposed 6.5 m/s
speed. An analysis of a realistic mid-range alternative with a
cut-in speed that would take materially fewer bats than
Buckeye’s proposal while allowing the project to go forward
would suffice. Although an agency “need not examine an
infinite number of alternatives in infinite detail,” Allison v.
Dep’t of Transp., 908 F.2d 1024, 1031 (D.C. Cir. 1990),
examining a reasonable alternative that could potentially take
fewer bats than Buckeye’s plan would “inform both the public
and the decisionmaker,” Citizens Against Burlington, 938
F.2d at 195, by “sharply defining the issues and providing a
clear basis for choice among options,” 40 C.F.R. § 1502.14.
Alternatively, the Federal Appellees argue that the
Service already considered higher cut-in speeds separately by
including the higher speeds in the literature supporting its
analysis of the various alternatives. This argument would be
compelling if only it were true. The Service’s response to
Union Neighbors’ comment belies the Federal Appellees’
argument here. When the Service rejected Union Neighbors’
comment, it did not say that higher cut-in speeds were
“effectively incorporated” or had been “previously
considered” in its analysis. The Service stated simply that
21
considering a 6.5 m/s cut-in speed was “not necessary.” J.A.
1054. Furthermore, although the adaptive management plan
incorporates a speed of 6.5 m/s in certain scenarios, the
Service’s analysis does not suggest that the impacts would be
identical to a consistent permanent cut-in speed. If cut-in
speeds could potentially reduce additional impacts on bats,
see J.A. 1054, and the adaptive plan operates under 6.5 m/s
under certain scenarios, see J.A. 209-11, certainly the impacts
would be different with constant cut-in speeds. The Service’s
failure to analyze a higher cut-in speed prevents us from
accepting its conclusion.
Accordingly, because the Service in these circumstances
did not consider any other reasonable alternative that would
have taken fewer Indiana bats than Buckeye’s plan, it failed to
consider a reasonable range of alternatives and violated its
obligations under NEPA. As a result, the Service’s issuance
of the ITP was arbitrary and capricious, and we reverse the
District Court on Union Neighbors’ NEPA claims.
B.
Union Neighbors also argues that the Service failed to
comply with Section 10(a)(2)(B) of the ESA, 16 U.S.C.
§ 1539(a)(2)(B)(ii), which requires a finding that the applicant
for an ITP “will, to the maximum extent practicable,
minimize and mitigate the impacts of such taking.”
Specifically, Union Neighbors argues that the Service failed
to fulfill this requirement in three ways: 1) failing to ensure
that Buckeye would, to the maximum extent practicable,
minimize the number of individual Indiana bats that would be
taken; 2) applying an inappropriate standard to determine
what constitutes the “maximum extent practicable”; and
3) failing to find that a reduced-impact alternative was
22
impracticable in contravention of Gerber v. Norton, 294 F.3d
173 (D.C. Cir. 2002).
1.
The Service made an official finding that Buckeye
minimized and mitigated the impact on the Indiana bat to the
maximum extent practicable. The Service noted that the ESA
required it “to examine and predict the efficacy of
[Buckeye’s] proposed minimization and mitigation
measures.” J.A. 1023. It explained the criterion as follows:
“Impacts to the species . . . of the proposed taking that are not
avoided or eliminated as a result of project and HCP planning
must be minimized to the maximum extent practicable. Any
remaining impacts must then be mitigated (e.g., ‘offset’ or
‘rectified’) to the maximum extent practicable.” Id.
The Service found “that Buckeye Wind will minimize
and mitigate the impacts of take on the Indiana bat to the
maximum extent practicable.” J.A. 1024. First, the Service
reasoned that Buckeye’s approach “applies a biologically-
based approach to minimizing take using avoidance
measures” including “the use of feathering and cut-in speeds.”
Id. Additionally, Buckeye minimized take through its siting
strategies and its application of “the strictest operational
protocols (cut-in speeds) to turbines in the highest quality
habitat areas and during the seasonal periods of highest risk.”
Id. Buckeye’s use of cut-in speeds based on habitat quality
rather than population also ensured minimization over the 30-
year life of the permit. See id. Because “[t]he primary form
of take of Indiana bats” was expected to be “mortality
resulting from operation of the wind turbines,” Buckeye’s use
of feathering and cut-in speeds would reduce the take by
68.3%, with additional reductions possible. Id.
23
The Service also considered Buckeye’s proposed
mitigation measures. Buckeye’s “permanent protection of
swarming habitat” would have two key effects: “enhanc[ing]
reproductive success and increas[ing] the survival probability
of Indiana bats that . . . overwintered in the hibernaculum.”
J.A. 1025. Moreover, because the “[t]he land will be
protected in perpetuity,” the benefits to the Indiana bat would
outlast the ITP’s duration. Id. Considering both the
minimization and mitigation measures, the Service concluded
that Buckeye’s plan not only “fully compensates for impacts
of the take to the” Indiana bat, but also “will assist in recovery
of the species.” Id. As a result, the Service found that
Buckeye’s “HCP minimizes and mitigates the impact of take
of the [Indiana bat] to the maximum extent practicable.” Id.
Furthermore, in response to substantive comments to the
Final EIS, 9 the Service noted that its “analyses indicate that
incidental take of individual bats associated with operation of
the project is likely to have insignificant impacts on the
subpopulations to which the taken individuals belong” and
that Buckeye “has minimized the impact of the taking to the
maximum extent practicable—to the extent that the impacts
are insignificant.” J.A. 1052. The official statement of
findings also describes how “none of the Expected Take or
Worst-case Take scenarios resulted in appreciable reductions
relative to the Baseline scenario in any of the metrics” and
“appreciable reductions in the fitness of the local maternity
colonies, migratory maternity colonies, and winter
populations to which the taken individuals belong are
unlikely.” J.A. 1021.
9
The Service’s official statement of findings also incorporated by
reference its responses to comments on the Final EIS. See J.A.
1022.
24
Finally, in response to comments on the Draft EIS, to the
extent that Buckeye was required to show that the
Conservation Plan represented “the extent practicable” to
which it could take action, the Service considered Buckeye to
have shown that the Conservation Plan was all that could be
“reasonably required” because the “maximum extent
practical” threshold is not “economic infeasibility.” J.A. 567-
68. The Service explained that “the maximum extent
practicable” standard “entails an analysis of the impact of the
proposed taking on the species, as well as an analysis of how
the mitigation proposal will offset those impacts.” J.A. 568.
As a result, “[i]f the mitigation fully offsets the impact of the
taking, the Applicant has met the ‘maximum extent
practicable’ standard.” Id.
2.
Union Neighbors argues that the Service’s findings fail to
comply with the statutory requirements under the ESA.
Union Neighbors’ arguments – first, about what “impacts”
must be minimized and mitigated, and, second, about the
meaning of “the maximum extent practicable” – are questions
of statutory interpretation. As a result, the Federal Appellees
and Buckeye urge us to review the Service’s interpretation
under the two-step standard articulated in Chevron U.S.A.,
Inc. v. NRDC, 467 U.S. 837 (1984).
“When it enacted the ESA, Congress delegated broad
administrative and interpretive power to the Secretary.”
Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or.,
515 U.S. 687, 708 (1995). Accordingly, “[f]ashioning
appropriate standards for issuing permits under § 10 for
takings that would otherwise violate § 9 necessarily requires
the exercise of broad discretion. . . . When Congress has
entrusted the Secretary with broad discretion, we are
25
especially reluctant to substitute our views of wise policy for
[the Secretary’s].” Id. Generally, “[w]e review [the
Service’s] interpretation of the statute under the familiar two-
step framework from [Chevron].” Friends of Blackwater v.
Salazar, 691 F.3d 428, 432 (D.C. Cir. 2012). Under that
standard, “[a]t Step One, the court asks ‘if the statute
unambiguously forecloses the agency’s interpretation,’” id.
(quoting Nat’l Cable & Telecomms. Ass’n v. FCC, 567 F.3d
659, 663 (D.C. Cir. 2009)), and “if it does not, then at Step
Two ‘we defer to the administering agency’s interpretation as
long as it reflects “a permissible construction of the statute,”’”
id. (quoting Sherey v. Sebelius, 644 F.3d 388, 393 (D.C. Cir.
2011)).
The Service urges us to apply Chevron deference to
interpretations outlined in the 1996 Habitat Conservation
Planning and Incidental Take Permit Processing Handbook
(the “Handbook”). See J.A. 1291. However, “not all
statutory interpretations by agencies qualify for the level of
deference afforded by that step.” Public Citizen, Inc. v. U.S.
Dep’t of Health & Human Servs., 332 F.3d 654, 659 (D.C.
Cir. 2003). “Chevron deference [is] appropriate only where
Congress has ‘delegated authority to the agency generally to
make rules carrying the force of law, and . . . the agency
interpretation claiming deference was promulgated in the
exercise of that authority.’” Id. (quoting United States v.
Mead Corp., 533 U.S. 218, 226-27 (2001)). The Handbook
itself makes clear that it is only a guide, stating that it
establishes “detailed but flexible guidelines” that are not
“intended to supersede or alter any aspect of Federal law or
regulations pertaining to the conservation of endangered
species.” J.A. 1293. As a result, it is akin to “interpretations
contained in policy statements, agency manuals, and
enforcement guidelines, all of which lack the force of law
[and] do not warrant Chevron-style deference.” Christensen
26
v. Harris Cnty., 529 U.S. 576, 587 (2000). However, where
the deference we should accord an agency interpretation is
unclear, “we need not reach the question of Chevron
deference” if the Service’s interpretation “satisfies the
requirements for Skidmore deference.” Brown v. United
States, 327 F.3d 1198, 1205 (D.C. Cir. 2003) (citing Skidmore
v. Swift & Co., 323 U.S. 134, 139 (1944)).
“Under Skidmore, the court grants an agency’s
interpretation only as much deference as its persuasiveness
warrants.” Id. Such interpretations reflect “a body of
experience and informed judgment to which courts and
litigants may properly resort for guidance.” Skidmore, 323
U.S. at 140. We accord deference to the agency’s
interpretation in light of “the thoroughness evident in its
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors
which give it power to persuade, if lacking power to control.”
Id. After considering the text, legislative history, and prior
interpretations of the ESA, we find the Service’s
interpretations of the statute persuasive under Skidmore.
a.
Where Union Neighbors and the Service first disagree is
whether the “impacts” that must be “minimized” refer to the
discrete number of Indiana bats taken or to effects on the
population and subpopulations of Indiana bats as a whole.
Union Neighbors submits that the language of the statute, as
well as its legislative history, supports interpreting the ESA to
require that the Service find that Buckeye minimized and
mitigated the impact on individual Indiana bats, not their
population or subpopulations as a whole.
27
Union Neighbors first argues that the Service has
accepted its definition of impacts, or alternatively, that certain
Service emails show that it incorrectly applied a jeopardy
standard in evaluating impacts. The “jeopardy” standard
governs actions by federal agencies, which are required to
show that their activities are “not likely to jeopardize the
continued existence of any endangered species.” 16 U.S.C.
§ 1536(a)(2). We can easily dispose of these arguments.
Accepting that an individual bat death may be an impact does
not mean that individual bat deaths are the sole impacts of
such taking. Regarding the Service’s emails, even assuming
that the emails reflect an official statement, the jeopardy
interpretation was not offered in the Service’s findings and
does not render those findings arbitrary or capricious. See
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S.
644, 658-59 (2007).
Turning to the statute itself, although its language is
unclear, it suggests that “impacts” refers to more than the
discrete number of individual members of a listed species. As
Union Neighbors concedes, the statute does not define what
“the impacts of such taking” are. See 16 U.S.C.
§ 1539(a)(2)(B)(ii); id. § 1532. However, the natural reading
of “the impacts of such taking” is that “impacts” and “taking”
are distinct concepts where the impact is the consequence of
the take. Under Union Neighbors’ reading, if the “take” is the
death of 5 Indiana bats, the impacts of that take would be the
death of 5 Indiana bats. Such a reading would render the
word “impacts” superfluous. The more natural reading is that
“impacts” refers to the effect of the taking on the species as a
whole, which necessarily includes populations and
subpopulations. See 16 U.S.C. § 1539(a)(2)(B)(iv) (requiring
the Secretary to find that “the taking will not appreciably
reduce the likelihood of the survival and recovery of the
species in the wild”).
28
In an effort to make its preferred interpretation of
“impacts” clear, Union Neighbors argues that the use of
“impact” in ESA Section 7, 16 U.S.C. § 1536(b)(4), should
inform the interpretation of Section 10 here. In Section 7, the
ESA provides that the Secretary, after consultation for a
Biological Opinion, should provide a written statement that
“specifies the impact of such incidental taking on the species”
and “specifies those reasonable and prudent measures that the
Secretary considers necessary or appropriate to minimize such
impact.” 16 U.S.C. § 1536(b)(4)(C)(i)-(ii). Turning to
Section 7’s legislative history, Union Neighbors cites the
1982 House report that “Section 7(b)(4) requires the Secretary
to specify the impact o[f] such incidental taking on the
species. The committee does not intend that the Secretary
will, in every instance, interpret the word ‘impact’ to be a
precise number. Where possible, the impact should be
specified in terms of a numerical limitation on the . . .
permittee . . . .” H.R. Rep. No. 97-567, at 27 (1982), as
reprinted in 1982 U.S.C.C.A.N. 2807, 2827.
To the extent that this legislative history is probative, it is
inconclusive. After all, not “every instance” of impact is “a
precise number.” Id. The House report even later notes that
federal action need not be suspended in the event “the
specified impact on the species is exceeded . . . unless it was
clear that the impact of the additional taking would cause an
irreversible and adverse impact on the species.” Id. Clearly,
impact includes the effects of the taking on the species
population, not just individual members of the species.
Furthermore, another House report explains that the Section
10 permitting provisions were designed with the “San Bruno
Mountain Plan” in mind. See H.R. Rep. No. 97-835, at 31-32
(1982) (Conf. Rep.), as reprinted in 1982 U.S.C.C.A.N. 2860,
2872-73. Nowhere in the description of this plan does it
mention minimizing the individual takings of two species of
29
endangered butterflies; rather, it notes that the plan “preserves
sufficient habitat to allow for enhancement of the survival of
the species.” Id. at 32, as reprinted in 1982 U.S.C.C.A.N.
2873 (emphasis added).
Here, the Service submits that its interpretation in the
Handbook is entitled to deference. Pursuant to the Handbook,
the Service will find that an applicant will, to the maximum
extent practicable, minimize and mitigate the impacts of such
taking following consideration of two factors: “adequacy of
the minimization and mitigation program, and whether it is
the maximum that can be practically implemented by the
applicant.” J.A. 1298. Additionally, “[t]o the extent
maximum [sic] that the minimization and mitigation program
can be demonstrated to provide substantial benefits to the
species, less emphasis can be placed on the second factor.”
Id.
Presumably, the Service asks us to read the Handbook’s
language describing whether the minimization and mitigation
programs “provide substantial benefits to the species” as
reflecting that it has interpreted “impacts” to refer to
populations and subpopulations rather than individual bats.
Although that interpretation may be less than clear, it is
consistent with the interpretation offered in the Service’s
responses to comments on the Final EIS that distinguish
between individual bats and species-level impacts. The
Service explained that “[t]he determination of whether or not
a project has minimized the impacts of the taking to the
maximum extent practicable is a biological standard that
considers how the species is impacted by the taking and
mitigation, and not just the quantity of take.” J.A. 1050
(emphases added). The Service further noted that “[t]he
impact of the taking . . . is dictated by the quantity of take and
how it is distributed over time and population segments[,] . . .
30
how the populations to which the taken individuals belong
respond to the loss of individuals, and how each
subpopulation contributes to the population as a whole.” J.A.
1050-51. In far more certain terms than it described in the
Handbook, the Service stated: “the ‘impact of the taking’ is
different than the quantity of taken individuals.” J.A. 1051.
Considering the text of the statute, its legislative history,
and the Service’s interpretation of the statue, we are
persuaded that the term “impacts” refers to the populations or
subpopulations of the species as a whole, rather than the
discrete number of individual members of the species.
Accordingly, we defer to the Service’s interpretation of the
ESA under Skidmore, and its findings were not arbitrary or
capricious.
b.
Union Neighbors’ second statutory argument concerns
the interplay between the phrases “to the maximum extent
practicable” and “minimize and mitigate such impacts.”
According to Union Neighbors, the “maximum extent
practicable” requirement operates independently on
“minimize” and “mitigate.” Union Neighbors contends that
to comply with the ESA, the Service must first find that the
number of individual Indiana bats taken was minimized to the
maximum extent practicable. Because “practicable” means
“reasonably capable of being accomplished,” BLACK’S LAW
DICTIONARY (10th ed. 2014), if Buckeye could further
minimize the number of Indiana bats taken, it must. Only
then could the Service determine whether Buckeye had
mitigated that taking to the maximum extent practicable.
Under Union Neighbors’ reading, this would make the
Service’s finding, which accounted for minimization and
31
mitigation together before finding that such measures were to
the “maximum extent practicable,” a violation of the statute.
Union Neighbors’ reading of the statute is plausible, but
the Service’s interpretation that the phrase “minimize and
mitigate” creates a single duty is more persuasive and
consistent with the statutory text. Specifically, the statute
provides that the Secretary must find that “the applicant will,
to the maximum extent practicable, minimize and mitigate the
impacts of such taking.” 16 U.S.C. 1539(a)(2)(B)(ii). First,
the statute uses the conjunctive “and” between “minimize”
and “mitigate,” rather than “then,” suggesting that the terms
should be read together, not as a sequence. Further
demonstrating that “minimize and mitigate” should be treated
together is their shared object, “the impacts of such taking.”
Additionally, the structure of the statute, which enumerates
independent findings the Secretary must make, supports this
reading. Minimize and mitigate are part of a single finding
the Secretary must make. See 16 U.S.C. § 1539(a)(2)(B). If
they had to be made independently, the duties could have
been imposed as independent findings the Secretary would
have to make. If the Secretary finds that the applicant can
“minimize and mitigate the impacts,” the Secretary will have
complied with its statutory duty. See Nat’l Wildlife Fed’n. v.
Norton, 306 F. Supp. 2d 920, 927-28 (E.D. Cal. 2004)
(discussing the relationship between minimize and mitigate).
Accordingly, the text of the ESA supports reading “minimize
and mitigate” jointly, and determining whether it has been
done “to the maximum extent practicable.”
Indeed, the Service’s prior interpretations of the statute
are largely consistent with this interpretation. The Service
points us to the Handbook, which, as discussed above, treats
the ESA finding as a “consideration of two factors: adequacy
of the minimization and mitigation program, and whether it is
32
the maximum that can be practically implemented by the
applicant.” J.A. 1298. The Handbook also provides that “[t]o
the extent maximum [sic] that the minimization and
mitigation program can be demonstrated to provide
substantial benefits to the species, less emphasis can be placed
on the second factor.” Id. According to the Service, this
language demonstrates that it has interpreted the ESA to
consider minimization and mitigation together, rather than
sequentially.
Union Neighbors argues that the Service has not been
consistent in its interpretation of the statute. For example, in
its October 2011 revision to its Indiana Bat Section 7 and
Section 10 Guidance for Wind Energy Projects, the Service
described “[w]hat . . . ‘minimize and mitigate to the
maximum extent practicable’ mean[s].” J.A. 1303.
Specifically, the Service stated:
We interpret this section to mean that the
impacts of the proposed project, including the
HCP, which were not eliminated through
informal negotiation must be minimized to the
maximum extent practicable and those
remaining impacts that cannot be further
minimized must be mitigated to the maximum
extent practicable.
Id. This passage suggests that minimization and mitigation
must be done independently to the maximum extent
practicable. Yet the Guidance later treats minimization and
mitigation as a single factor: “If applicants provide
biologically based minimization measures and mitigation
measures that are fully commensurate with the level of
impacts, they have minimized and mitigated to the maximum
extent practicable.” Id. This one instance of ambiguity is
33
not enough to deprive the Service’s interpretation of its
persuasive power.
Finally, the Service’s responses to comments provide the
clearest picture about how the Service interprets the ESA’s
requirement that it find minimization and mitigation to the
maximum extent practicable. The Service described its
findings, noting that the cut-in speeds and feathering led the
Service to determine that Buckeye “has minimized the
quantity of take.” J.A. 1051. Because the quantity of take
would have “insignificant impacts on the subpopulations to
which the taken individuals belong[ed],” the Service found
that Buckeye “minimized the impact of the taking to the
maximum extent practicable.” J.A. 1052. Furthermore,
Buckeye’s mitigation measures would “contribute toward
recovery of the species,” meaning Buckeye “mitigated the
impact of the taking to the maximum extent practicable.” Id.
After quoting the Handbook, the Service explained that “an
assessment of economic feasibility can be considered in part
of the assessment of the ‘maximum that can be practically
implemented by the Applicant,’ particularly if the mitigation
does not fully offset the impact of the taking.” J.A. 1053. In
this instance, “because the minimization and mitigation fully
offset the impact of the taking,” the Service found “it [was]
not necessary to determine if the plan [was] the ‘maximum
that can be practically implemented by’” Buckeye. Id. In
other words, if combined minimization and mitigation fully
offset the take, it does not matter whether Buckeye could do
more; Buckeye has already satisfied what is required under
the ESA. Accordingly, the Service’s ESA findings were not
arbitrary or capricious.
34
3.
Union Neighbors’ final salvo against the Service is
Gerber v. Norton, 294 F.3d 173 (D.C. Cir. 2002). Union
Neighbors contends that Gerber requires the Service to make
an independent finding that no reduced impact alternative is
practicable in order to find that Buckeye minimized and
mitigated to the maximum extent practicable. Assuming
without deciding that Gerber imposes such a requirement, the
Service made the necessary finding that no identified reduced
impact alternative was practicable.
In Gerber, we reviewed the issuance of a permit
authorizing a taking of the endangered Delmarva fox squirrel.
294 F.3d at 175. The Defenders of Wildlife challenged the
issuance of the permit as a violation of Section 10 of the ESA
because the Service failed to find independently that “no
practical alternative” to the proposed development plan
“would minimize the taking of fox squirrels.” Id. at 185.
Because the Service “found, both in its draft and final
Environmental Assessment, that there was a ‘Reduced Impact
Alternative’ that ‘would reduce the likelihood of take’ of fox
squirrels,” “the agency could not have issued the permit
consistent with section 10(a) without making a finding that
the Reduced Impact Alternative was impracticable.” Id.
Although the developer found the Reduced Impact
Alternative impracticable, the Service never did so. Id. at
185. Because the Service never made an independent finding
that the alternative was impracticable, it necessarily failed to
find that take had been minimized to the maximum extent
practicable, violating the ESA. Id. at 186.
Assuming that Gerber has implications for a situation in
which the agency (as here) finds that minimization and
mitigation fully offset the take, on the record before the Court,
35
the Service complied with any applicable obligations
described in Gerber. Union Neighbors contends that the
Service “failed to make any independent determination that
known reduced-impact alternatives would be impracticable,”
Appellant Br. at 55, which it defines as an alternative that
would reduce individual bat mortality, id at 56. But Union
Neighbors discounts the Service’s analysis and rejection of
the Max Alternative. See Appellant Br. at 58. Although the
Max Alternative would take no Indiana bats, the Service
found that only 491,587 MWh/y would be generated and 22%
fewer emissions would be reduced. The Max Alternative
would also result in a 22.7% reduction in clean energy; $8.65
million in lost annual revenues; and $216.5 million in lost
revenues over the Permit term. J.A. 808. In the Service’s
Record of Decision for issuing the permit, it specifically
found that it “would likely result in the Project not being
built.” J.A. 1043. These findings are sufficient to reject the
practicability of the Max Alternative under Section 10.
Accordingly, at least with respect to the one reduced
impact alternative identified by the agency and accepting its
assumption that there were no other reduced impact
alternatives, the Service complied with its purported
obligations under Gerber. Union Neighbors submits that the
Service failed to reject another known reduced impact
alternative when it did not find a 6.5 m/s cut-in speed
impracticable. But at this time we express no opinion
whether, after analyzing another reasonable alternative under
NEPA on remand, the Service has obligations under the ESA
to make additional independent findings as to whether any
such alternative is impracticable.
36
***
For the foregoing reasons, we reverse in part and affirm
in part the judgment of the District Court.
So ordered.