The Song Remains the Same: Cape Wind Wins Another Case and the Opponents Declare Victory

Late last week, in Public Employees for Environmental Responsibility v. Beaudreu, Judge Reggie Walton gave Cape Wind and its federal co-defendants an almost across the board victory in a series of challenges by Cape Wind opponents to a variety of environmental decisions made by federal agencies.  We’ll see how many more of these victories Cape Wind can take.  Their opponents certainly aren’t going away.  In fact, the opponents declared victory themselves.

Judge Walton agreed with the opponents on two issues.  First, he found that the Fish and Wildlife Service erred in essentially delegating to the Bureau of Ocean Energy Management (and Cape Wind) the determination whether “feathering” the turbine blades at certain times would be a reasonable and prudent measure to mitigate potential harm to endangered species.  In short, FWS may consult with other agencies, but the final decision has to be by FWS, and the record did not indicate that FWS made any independent assessment as to whether feathering was reasonable.  I assume that this is easily correctable by FWS on remand (and it is virtually certain that any such decision would survive further judicial review), but it is a little odd that FWS did not include any statement of its own conclusions, instead simply pointing to the conclusions made by BOEM and Cape Wind.

Judge Walton also remanded another ESA issue, this time to the National Marine Fisheries Service.  NMFS prepared a Biological Opinion which concluded that Cape Wind was not likely to adversely affect right whales, but failed to issue an incidental take statement to accompany the BiOp.  The Court agreed that the BiOp was adequate.  However, because an incidental take statement is required whenever incidental takes “may” occur, the Court found that the failure by NMFS to include an incidental take statement was arbitrary and capricious.  However, this remand seems truly trivial.  Given that the Court approved the BiOp, it is near certain that NMFS can develop an incidental take statement fairly easily that would survive further challenge.

And thus the beat goes on.  Cape Wind keeps winning.  The Alliance to Protect Nantucket Sound keeps up with the challenges, hoping that Cape Wind or its potential sources of finance will just give up.  This has to end sometime.  For now, the song remains the same.

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