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Union Neighbors United, Inc. v. Jewell
United States Court of Appeals for the District of Columbia Circuit
831 F.3d 564 (2016)
Buckeye Wind, LLC (Buckeye) sought to build a commercial windfarm of up to 100 wind turbines in Champaign County, Ohio. The proposed windfarm site was in a rural area where it posed potential harm to Indiana bats. Buckeye consulted with the United States Fish and Wildlife Service (USFWS) for several years to determine the potential impact of the project on wildlife. The USFWS eventually prepared an environmental-impact statement that identified the issuance of an incidental-take permit (ITP) as the proposed government action. The USFWS stated that the main purpose of the ITP was to protect, conserve, and enhance the Indiana bat habitat and ensure that the take of the bats was avoided and minimized to the maximum extent. The USFWS issued the ITP based on consideration of alternatives to Buckeye’s proposal to minimize the take of bats. The alternatives focused on the dates, times, and speeds of wind-turbine operations. The alternatives included no action, under which the turbines would not operate at all, and a maximum alternative, under which there would be no take of bats but there would be an economic loss. There was a minimum alternative, under which economic gain and take of bats were highest at the take of 12 bats per year. Buckeye’s proposal estimated a take of 5.2 bats a year. The USFWS did not consider other alternatives and reasoned that Buckeye’s proposal was close enough to the maximum alternative to make it unnecessary to consider other variations of alternatives. The USFWS issued the ITP to Buckeye. Union Neighbors United, Inc. (Union Neighbors) (plaintiff) filed a complaint against the Department of the Interior (DOI) and the USFWS (defendants) alleging that the issuance of the ITP was arbitrary and capricious, an abuse of discretion, and in violation of NEPA because there was a failure to consider a reasonable range of alternatives. The district court found for the DOI and USFWS that the ITP was appropriate and was issued in accordance with the National Environmental Policy Act (NEPA).
Rule of Law
Holding and Reasoning (Wilkins, J.)
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