United States Court of Appeals, District of Columbia Circuit
Public Employees for Environmental Responsibility, et al., Appellants
Abigail Ross Hopper, Acting Director, U.S. Bureau of Ocean Energy Management, et al., Appellees Town of Barnstable, Massachusetts, et al., Appellees
February 11, 2016
from the United States District Court for the District of
Columbia (No. 1:10-cv-01073) (No. 1:10-cv-01067) (No.
1:10-cv-01079) (No. 1:10-cv-01238)
Benjamin S. Sharp argued the cause for appellant Alliance to
Protect Nantucket Sound. With him on the briefs were
C. Baur, Jennifer A. MacLean, W. Eric Pilsk, and Charles Alan
R. Glitzenstein argued the cause for appellants Public
Employees for Environmental Responsibility, et al. With him
on the briefs was William S. Eubanks II.
D. Lochner was on the brief for amici curiae Cape Cod Marine
Trades Association, Inc. and Massachusetts Fishermen's
Partnership, Inc. in support of appellants.
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.
Christopher H. Marraro argued the cause for intervenor Cape
Wind Associates, LLC. With him on the brief was Geraldine E.
Before: Millett and Wilkins, Circuit Judges, and Randolph,
Senior Circuit Judge.
Randolph. Senior Circuit Judge
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.
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. 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).
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,  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."
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.
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).
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.
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
(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. 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 (1989) (quoting Kleppe v.
Sierra Club, 427 U.S. 390, 410 n.21 (1976)). This
"hard look" requirement applies to the
"authorization or ...