A Good Plan Gone Bad?

Cutting and pasting is standard operating procedure for too many NEPA documents. One judge had enough.

Double crested cormorants (Phalacrocorax auritus) were once threatened with extinction by DDT.  But when DDT use was phased out domestically the species rebounded dramatically.  Today, though it is still a protected migratory species under the federal Migratory Bird Treaty Act, double crested cormorants are better known as the mortal enemies of aquaculturists and fishermen everywhere.  They are highly effective hunters and anyone who must compete with them can be forgiven for believing that their own misfortunes are in some significant measure the fault of the cormorants.

But forgiveness of a wildlife agency that blindly manages these conflicts is a little harder to come by.  When the U.S. Fish & Wildlife Service (FWS) first made a rule allowing aquaculture operations to control cormorants, with lethal force if necessary, it was 1998.  FWS has continually reissued the “Aquaculture Depredation Order” (AQDO) and another, related order permitting cormorant “take,” periodically since, most recently in 2014.  The orders have always only allowed cormorant “take” where it can be proven that the bird(s) is “found committing or about to commit depredations to aquaculture stock.”   See 50 C.F.R.§§ 21.47, 21.48.

Still, the orders give standing permissions to kill, waiving the individualized permit-to-take requirement that would otherwise govern.  See The Fund for Animals v. Kempthorne, 538 F.3d 124, 127-28 (2d Cir. 2008) (citing 50 C.F.R. § 21.41).  And that is an exceptional step when the species in question is one placed in your care by a statute implementing treaty obligations.DDC with breeding plumage

FWS even established a cormorant team and drafted a national cormorant management plan, complete with an environmental impact statement (EIS) which was finalized in March 2003.  See Notice of Availability; Final Environmental Impact Statement on Double-Crested Cormorant Management, 68 Fed.Reg. 47603 (Aug. 11, 2003); Migratory Bird Permits; Regulations for Double-Crested Cormorant Management (“Final Rule”), 68 Fed.Reg. 58022 (Oct. 8, 2003).

Several plaintiffs challenged that plan and the EIS that accompanied it.  They argued the EIS lacked site-specific analysis of cormorant control and the Second Circuit rejected the claim for the very good reason that the order and management plan committed the agency to no site-specific actions.  See Kempthorne, 538 F.3d at 137-38.

But that was thirteen years ago and FWS, despite repeated rumblings, never circled back to study what effects, if any, should be attributed to its AQDO or its other general permissions to kill cormorants.  And that recently wound them up before Judge John Bates of the United States District Court for the District of Columbia.  In an opinion published last week, Judge Bates took the agency to the proverbial woodshed for its use of a warmed-over environmental assessment (EA) instead of a proper follow-up EIS containing honest-to-goodness, trendline-clarifying information about its orders.  See Public Employees for Envtl. Resp. v. U.S. Fish & Wildlife Serv., 2016 WL 1254214 (D.D.C. 2016).

Cut and Paste ≠ A ‘Hard Look’

NEPA is notorious for requiring federal agencies to take a “hard look” at the environmental consequences of their actions.  It’s the statute’s core “action forcing” requirement.  Judge Bates seemed especially clear on the point that an agency which has gotten into the habit of cutting and pasting an old EA’s facts and figures into a new EA’s discussion isn’t taking that “hard look.”  In this case, FWS had—despite claiming that it had employed a population model to predict the likely impacts of continuing the orders—simply reproduced a “nearly carbon copy of the impacts analysis from [its] 2009 EA.”  Id. at Slip Op. 5.

It is worth quoting the Judge’s remarks to the agency—which had very clearly pled its own budgetary woes in defense—in full.

It is not lost on the Court that agencies must work within limited budgets and, in the real world of resource constraints, cannot pursue all their policy goals at once. Rather, they must prioritize based on what they can afford to do. In this case, it seems that FWS chose only to consider options that “would not result in changes to current management strategies” because considering changes to that scheme would require the expenditure of resources that the agency did not have.  But NEPA’s requirement to consider appropriate alternatives takes that option off the table.  Facing the expiration of the [orders], FWS had two choices: (1) take action and in doing so comply with NEPA’s requirement to consider appropriate alternatives, or (2) let the Orders expire and take action at such time as FWS was able to comply with NEPA. What FWS could not do was decide to take action by issuing a five-year renewal of the Orders while declining to consider appropriate alternatives because doing so would require too many resources.

Id. at 6 (internal citations omitted).

The judge also ruled that the errors were not harmless, that the errors then infected the alternatives analysis FWS prepared and that the parties should more fully brief the possibility that this defective EA, necessary to FWS’s 2014 re-promulgation, should result in the vacatur of the underlying agency action—the AQDO and other orders.  Of course, that would leave the cormorants’ mortal enemies without their license to kill.  Stay tuned for that chapter!

{Image: double crested cormorants with fish, courtesy of Wikimedia}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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