American Bird Conservancy Sends Notice of Intent to Sue Administration Over Revised Eagle Permit Rule

On April 30, 2014, the American Bird Conservancy (“ABC”) sent a Notice of Intent to Sue (“Notice”) to Secretary of the Interior Sally Jewell and Director of the U.S. Fish and Wildlife Service (“Service’) Dan Ashe, alleging violations of the National Environmental Policy Act (“NEPA”), the Endangered Species Act (“ESA”), and the Bald and Golden Eagle Protection Act (“Eagle Act”) in connection with the Service’s issuance of the revised eagle permit rule.

The Notice relates to the revised rule that was issued in December 2013 and that extended the maximum term for programmatic “take” permits under the Eagle Act to 30 years, subject to a recurring five-year review process throughout the permit life. Under the previous rule, programmatic permits for incidental “take” of bald and golden eagles could extend only for five years.

In the Notice, ABC alleges that the Service violated NEPA by failing to prepare an Environmental Impact Statement or Environmental Assessment on the rule changes, arguing that the changes are more than “administrative” in nature and therefore the Service erred by applying a categorical exclusion. ABC asserts that the Service’s application of a categorical exclusion is improper given the fact that the Service prepared an Environmental Assessment when it adopted the original rule in 2009. The Notice also alleges that the Service violated the ESA by failing to consult concerning the impacts to listed species under ESA Section 7. Finally, the Notice argues that the revised rule violates the Eagle Act itself, noting that, in revising the rule, the Service’s “principal, if not sole, purpose was to ‘accommodate’ the purported ‘needs’ of the wind power industry for longer term permits.” This, ABC alleges, cannot be reconciled with earlier findings by the Service that it was appropriate to issue programmatic permits for terms of five years or less.

It is unclear whether AWEA or any individual wind developers will seek to intervene or file amicus briefs in the litigation if it moves forward. It is also unclear whether ABC will seek a preliminary injunction to halt the permitting process while the litigation is pending, although our initial assessment is that a court would be unlikely to enter any such injunction. For that reason and others, we do not anticipate that the notice or any suit that is filed will have an immediate impact on whether or not developers continue to seek “programmatic” take permits. But ABC’s move adds yet another wrinkle to an area that is already fraught with more than its share of regulatory uncertainty.

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