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Public Employees for Environmental Responsibility v. Hopper

United States Court of Appeals, District of Columbia Circuit

July 5, 2016

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

          Argued February 11, 2016

         Appeals 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

          Donald C. Baur, Jennifer A. MacLean, W. Eric Pilsk, and Charles Alan Spitulnik.

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

          Todd 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.

          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 argued the cause for intervenor Cape Wind Associates, LLC. With him on the brief was Geraldine E. Edens.

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


          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).


         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 (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 ...

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