No Short Cuts Allowed: The FWS Must Comply with NEPA Before Extending Programmatic Take Permits to 30 Years

Earlier this month, the Judge Lucy Koh set aside the Fish & Wildlife Service’s decision to extend its programmatic permit for bald and golden eagle SOARING EAGLE-1000 pixels widetakes from five to 30 years.  The extension was sought by the wind industry for the obvious reason that the uncertainty attached to a five-year permit makes financing a 20- or 30-year project very difficult.  I agree with the concern and support the extension, but the FWS’s attempt to short-circuit NEPA requirements in order to get the extension done quickly was doomed from the start.

Indeed, this case mostly stands for the proposition that bureaucratic overreach is almost always counterproductive.  The extension was not just opposed by environmental groups and native American tribes.  It was also opposed by the National Park Service – and FWS’s own staff, including the writer of the rule!  Eliza Savage, described by the Court as having “’responsibility for overseeing the drafting and revision’ of the Proposed 30-Year Rule,” was the source of the following nuggets from the administrative record:

  • It was a “no-brainer that [FWS] needed to do a NEPA analysis,” (referring to the rule’s “critical NEPA deficiencies”).
  • The [30-year] permits will be inherently less protective for eagles than 5-year permits
  • The regulatory process for the extension of the permit was a “train wreck” that “no one could be proud of”

Ms. Savage and others at FWS warned that the permit was on legally tenuous ground.  Consistent with that, staff’s final recommendation to FWS director Dan Ashe was to “shelve the … rule and do an EIS.”  Director Ashe rejected the recommendation.

Bad idea.  If FWS had bitten the bullet in 2012 and prepared the EIS, it would be done now.  An effort to accelerate permit protection for wind farms has only increased the uncertainty for wind farm developers.

Short cuts almost never work.

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