Pub. Emps. for Envtl. Responsibility v. Hopper

• Decision Date: 05 July 2016
• Docket Number: C/w 14-5303,No. 14-5301,14-5301
• Citation: 827 F.3d 1077
• Parties: Public Employees for Environmental Responsibility, et al., Appellants Town of Barnstable, Massachusetts, et al., Appellees v. Abigail Ross Hopper, Acting Director, U.S. Bureau of Ocean Energy Management, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

827 F.3d 1077

Public Employees for Environmental Responsibility, et al., Appellants

Town of Barnstable, Massachusetts, et al., Appellees

v.Abigail Ross Hopper, Acting Director, U.S. Bureau of Ocean Energy Management, et al., Appellees.

No. 14-5301

C/w 14-5303

United States Court of Appeals, District of Columbia Circuit.

Argued February 11, 2016

Decided July 5, 2016

Benjamin S. Sharp, Washington, DC, argued the cause for appellant Alliance to Protect Nantucket Sound. With him on the briefs were Donald C. Baur, Jennifer A. MacLean, W. Eric Pilsk, and Charles Alan Spitulnik, Washington, DC.

Eric R. Glitzenstein, Washington, DC, argued the cause for appellants Public Employees for Environmental Responsibility, et al. With him on the briefs was William S. Eubanks II, Wellborn, FL.

Todd D. Lochner, Annapolis, MD, was on the brief for amici curiae Cape Cod Marine Trades Association, Inc. and Massachusetts Fishermen's Partnership, Inc. in support of appellants.

J. David Gunter II, 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 Luther L. Hajek, Attorney.

Christopher H. Marraro, Washington, DC, argued the cause for intervenor Cape Wind Associates, LLC. With him on the brief was Geraldine E. Edens, Washington, DC.

Before: Millett and Wilkins, Circuit Judges, and Randolph, Senior Circuit Judge.

Randolph

, Senior Circuit Judge:

The Cape Wind Energy Project is a proposal to generate electricity from windmills off the coast of Massachusetts. It calls for the “construction, operation and maintenance ... of 130 wind turbine generators” in the Horseshoe Shoal region of Nantucket Sound. The turbines have an estimated life-span of twenty years, and during that time they are expected to generate up to three-quarters of the electricity needs for Cape Cod and the surrounding islands. The project's “underlying purpose” is to help the region achieve Massachusetts's renewable energy requirements, which “mandate that a certain amount of electricity come from renewable energy sources, such as wind.” See Mass. Gen. Laws ch. 25A, § 11F

.

Offshore energy providers like Cape Wind must comply with a slew of federal statutes designed to protect the environment, promote public safety, and preserve historic and archeological resources on the outer continental shelf.¹ They must also go through “several regulatory and administrative procedures” to satisfy regulations promulgated under these statutes. Pub. Emps. for Envtl. Responsibility v. Beaudreau , 25 F.Supp.3d 67, 85 (D.D.C. 2014)

, appeal dismissed sub nom.

Pub. Emps. for Envtl. Responsibility v. Cruickshank , No. 14–5117, 2014 WL 3014869 (D.C. Cir. June 11, 2014).

Cape Wind first sought government approval for its project in 2001 when it filed a permit application with the United States Army Corps of Engineers, the federal agency then regulating outer continental shelf wind energy projects. See All. to Protect Nantucket Sound, Inc. v. U.S. Dep't of Army , 398 F.3d 105, 107 (1st Cir. 2005)

; 33 U.S.C. § 403. Four years later, the Energy Policy Act of 2005, Pub. L. No. 109-58, § 388(a), 119 Stat. 594, 744, amended the Outer Continental Shelf Lands Act, see 43 U.S.C. § 1337(p), and transferred primary regulatory authority over offshore renewable energy projects to the Bureau of Ocean Energy Management,² an agency within the Department of the Interior. See id. § 1337(p)(1)(C)

; 76 Fed. Reg. 64,432, 64,434, 64,459 (Oct. 18, 2011). Since then, this Bureau has promulgated regulations governing the development of “renewable” energy production on the outer continental shelf. See 30 C.F.R. § 585.100 et seq . (“Renewable Energy and Alternate Uses of Existing Facilities on the Outer Continental Shelf”). The regulations require the Bureau both to collect information about projects and to “consult with relevant [f]ederal agencies,” including inter alia the United States Coast Guard and the Fish and Wildlife Service. Id. § 585.203; see id. § 585.600. Although Cape Wind submitted its application before the regulations issued, the Bureau decided that the regulations would nonetheless “be applicable as the Cape Wind Energy Project moves forward through the construction, operation, and decommissioning phases.”

Plaintiffs are the Alliance to Protect Nantucket Sound, Public Employees for Environmental Responsibility, and others. They claim that the government violated half a dozen federal statutes in allowing Cape Wind's project to move through the regulatory approval process. See Pub. Emps. , 25 F.Supp.3d at 77–79

. The Bureau allegedly violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C), the Shelf Lands Act, 43 U.S.C. § 1337(p), the National Historic Preservation Act, 54 U.S.C. § 306108, and the Migratory Bird Treaty Act, 16 U.S.C. § 703(a). The Bureau and the United States Coast Guard allegedly violated the Coast Guard and Maritime Transportation Act, Pub. L. No. 109-241, § 414, 120 Stat. 516, 540 (2006). The Fish and Wildlife Service allegedly violated the Endangered Species Act, 16 U.S.C. § 1538.

On March 14, 2014, the district court rejected most of these claims and granted partial summary judgment to the government agencies. See Pub. Emps. , 25 F.Supp.3d at 130

. On November 18, 2014, the court rejected plaintiffs' remaining claims, granted summary judgment, and dismissed the case. We “review de novo the district court's grant[s] of summary judgment,” and “apply the arbitrary and capricious standard of the Administrative Procedure Act, 5 U.S.C. [§ 706 ]” to determine whether the government complied with federal law. WildEarth Guardians v. Jewell , 738 F.3d 298, 308 (D.C. Cir. 2013) ; see

CTIA-Wireless Ass'n v. FCC , 466 F.3d 105, 113 (D.C. Cir. 2006) ; Nat'l Ass'n of Home Builders v. Norton , 415 F.3d 8, 13 (D.C. Cir. 2005) ; Hill v. Norton , 275 F.3d 98, 102 (D.C. Cir. 2001), superseded by statute on other grounds , Migratory Bird Treaty Reform Act, Pub. L. No. 108-447, § 143, 118 Stat. 2809, 3071-72 (2004); Indep. Petroleum Ass'n of Am. v. Babbitt , 92 F.3d 1248, 1257 (D.C. Cir. 1996).

I

Plaintiffs challenge the Bureau's decision to issue the lease for Cape Wind's project without first obtaining “sufficient site-specific data on seafloor and subsurface hazards” in Nantucket Sound. Alliance Br. at 26-27. They argue that the Bureau violated the National Environmental Policy Act, 42 U.S.C. § 4332

, by relying on inadequate “geophysical and geotechnical” surveys. Alliance Br. at 21. We agree.

Under NEPA, an agency must “consider every significant aspect of the environmental impact of a proposed action.” Balt. Gas & Elec. Co. v. NRDC , 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)

; see 42 U.S.C. § 4332(2). The agency must then “inform the public that it has indeed considered environmental concerns in its decisionmaking process.”

462 U.S. at 97, 103 S.Ct. 2246

. In other words, agencies must “take a ‘hard look’ at [the] environmental consequences” of their actions, and “provide for broad dissemination of relevant environmental information.” Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (quoting Kleppe v. Sierra Club , 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) ). This “hard look” requirement applies to the “authorization or permitting of private actions” like the Cape Wind Project. Sierra Club v. U.S. Army Corps of Engineers , 803 F.3d 31, 36–37 (D.C. Cir. 2015).

The principal way the government informs the public of its decisionmaking process is by publishing environmental impact statements. See 42 U.S.C. § 4332(2)(C)

. Agencies must “prepare and make publicly available” these statements for all “major [f]ederal actions significantly affecting the quality of the human environment....” Sierra Club , 803 F.3d at 37. Among other things, impact statements must describe a proposed “action's anticipated direct and indirect environmental effects.” 803 F.3d at 37.

In 2004, the Army Corps of Engineers issued a draft impact statement for the Cape Wind project. After the Bureau assumed authority, it reviewed the Corps's draft statement, “identified information requirements and/or issue areas that [were] incomplete,” and announced that it would issue its own impact statement. See Notice of Intent to Prepare an Environmental Impact Statement, 71 Fed. Reg. 30,693 (May 30, 2006)

. The Bureau published draft and final impact statements in 2008 and 2009, respectively. See 73 Fed. Reg. 3,482 (Jan. 18, 2008) ; 74 Fed. Reg. 3,034 (Jan. 16, 2009).

Plaintiffs argue that the Bureau's 2009 impact statement is arbitrary and capricious because it does not adequately assess the seafloor and subsurface hazards of the Sound.³ They claim that the statement relies on inadequate geological surveys, which according to the Bureau's internal guidance, help determine whether “the seafloor [is] able to support large structures,” and whether “important archaeological and prehistoric features [can] be protected.” In support, plaintiffs refer to a series of internal Bureau emails describing “the dearth of geophysical data over the entire area” of the proposed wind farm. For example, in December 2006, Richard Clingan, the Bureau geologist overseeing the impact statement's geophysical data section, emailed a list of concerns to the Bureau's “Cape Wind Project Manager,” Rodney Cluck, including that “[t]here is no indication that [Cape Wind] ha[s] adequate data to address” various geological hazards, and that Cape Wind's surveys “don't seem to conform (even loosely) to the ‘Guidance Notes on Site Investigations for Offshore Renewable Energy Projects'....” His emails referred to three surveys conducted for Cape Wind between 2001 and 2005 that the Bureau concedes were “insufficient” to “support approval to construct the project....” Defendants Br. at 41. In June 2007, Clingan repeated his “geophysical data concerns,” and Rodney Cluck forwarded to the...