*Good* News for Cape Wind? NEPA Compliance Comes in Steps

The D.C. Circuit’s “insufficient data” remand this week shows just how fouled up the mother of all offshore windfarm projects has become in the tethers of NEPA. But did Judge Randolph’s opinion play fair with the government’s case?

Cape Wind—America’s poster child for NIMBY litigation run amok—just emerged from a D.C. Circuit panel’s review with a telling result.

Fast on the heels of a Ninth Circuit holding setting aside a proposed windfarm’s NEPA document for insufficient data, the D.C. Circuit announced on Tuesday that it was setting aside the Bureau of Ocean Energy Management (BOEM) environmental impact statement (EIS) for Cape Wind Energy’s lease on Horseshoe Shoal in Nantucket Sound.  The reason? The EIS supposedly contained insufficient data for assessing the subsurface impacts and, relatedly, whether the ocean floor in the area would support the large turbines planned.

The National Environmental Policy Act (NEPA) requires that agencies like BOEM take a “hard look” before they make major decisions with real consequences for the environment.  According to the court, NEPA’s “hard look” standard means at least this:

[T]he question is whether [BOEM] ‘consider[ed] every significant aspect of the environmental impact” of the project, including the subsurface environment. [BOEM] distinguishes between the ‘initial decision’ to issue a lease and the consequences of that decision.

Public Emps. for Envtl. Resp. v. Hopper, (D.C. Cir. 2016), Slip Op. at 9 (emphasis in original).  But the panel then went on to castigate BOEM for a fatuous interpretation of our national ‘environmental charter’: of course the statute doesn’t allow an agency to separate the “consequences” of its decisions from those decisions in the NEPA documents it prepares.  That would make a mockery of the Act.

And it would be odd if the Department of Justice—which litigates almost as many NEPA cases as everyone else combined—made such a specious argument.  Indeed, it would be extraordinary if, in approving the Cape Wind lease, the federal government actually did violate some six different federal statutes, as the Alliance to Protect Nantucket Sound (“Alliance”) and its allies alleged.

But, of course, the government did not bullocks up that much—as the district court and this D.C. Circuit panel agreed in dismissing every single claim save two: the NEPA claim and a similar claim under the Endangered Species Act.  This post considers the merits of the NEPA arguments and shows that Judge Randolph badly misinterpreted the government’s case and his own court’s precedents.

Phased Governance on the Continental Shelf: NEPA in Stages

As we’ve written about before, energy development on the “outer continental shelf” (a jurisdictional area having nothing to do with the continental plates) is governed by the Outer Continental Shelf Lands Act or OCSLA.

OCSLA’s been structured to fit NEPA reviews into several stages of the decision to lease areas for development, to permit exploration for leasable prospects, to review and approve development plans, to review and govern operations, etc.  Indeed, several of the D.C. Circuit’s formative NEPA precedents involve OCSLA cases and construe NEPA’s impact statement duties given that that program takes a phased approach to decision-making.  See, e.g., North Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir. 1980); Center for Bio. Diversity v. U.S. Dept. of Interior, 563 F.3d 466 (D.C. Cir. 2009).

This kind of program can be especially tricky for environmental impact decision treeassessment, though.  Which (projected) impacts are best analyzed early and which are best left for later, when details are known and specific locations are set?  That can be hard to sort out.  It can also be hard to schedule around the fact-gathering the agency expects will occur in the ordinary course of development/programming.  If you expect that an applicant will eventually settle on spatially explicit plans for its intended development prospects, it might be best to hold off analyzing those issues that tend to be site-specific or heavily influenced by site-specific factors.  See, for example, CEQ’s guidelines on the “significance” determination in an impact assessment, 40 C.F.R. § 1508.27(a)(“Significance varies with the setting of the proposed action.  For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole.”).

Cape Wind got started before windfarms were thought of as “energy development,” though.  When Congress enacted the Energy Policy Act of 2005, it sent jurisdiction over developments like Cape Wind to the Department of Interior. Cape Wind had a period (2005-06) transitioning into OCSLA’s and the Department of Interior’s (BOEM) control. (The proposal is to put the windfarm in the relatively protected, shallow, but also windy area between the Cape, Martha’s Vineyard and Nantucket.)250px-Cape_Cod_Bay_map

BOEM took an early EIS prepared by the Army Corps of Engineers and prepared their own (and then later did an environmental assessment on whether to supplement the EIS) on the decision whether to offer a lease.  Even that preliminary EIS was the subject of protracted litigation.  See Alliance to Protect Nantucket Sound v. U.S. Dept. of the Army, 398 F.3d 105, n.7 (1st Cir. 2005).  Indeed, Cape Wind’s first attempt just to build an offshore data collection tower were litigated interminably.  See Ten Taxpayer Citizens Group v. Cape Wind Assocs., LLC, 373 F.3d 183 (1st Cir. 2004).

That was all by way of phase 1.  Phase 2{, 3, 4 . . . n} would necessarily involve more site-specific deliberations.  But according to the Justice Department’s brief in the case, even the Corps’ initial EIS included “several marine geophysical surveys using side-scan sonar, a boring program to examine geologic conditions below the seafloor, and the collection of marine sediment samples and vibracores at the proposed location of turbines and cable.”  Pub. Emps. for Envtl. Resp. et al. v. Hopper, Federal Appellees Final Resp. Brief, Nos. 14-5301, 14-5303 (D.C. Cir.) (Nov. 16, 2015), at 39-40.

Once BOEM took over, its newly updated regulations would govern any future installation’s construction and operation.  The D.C. Circuit itself has concluded that that constitutes a good and sufficient reason to postpone further NEPA consideration to the point at which the (future) governing terms of an OCSLA permission will be granted.  See, e.g., Theo. Roosevelt Conserv. P’ship v. Salazar, 616 F.3d 497, 512-15 (D.C. Cir. 2010); Center for Bio. Diversity v.  U.S. Dept. of Interior, 563 F.3d 466, 480 (D.C. Cir. 2009).

Yet Judge Randolph finds in Hopper that this preliminary record, because certain internal BOEM discussions emphasized that more study would be needed before site-specific permissions should be granted, rendered the geophysical/subsurface data not “adequate” and that the inadequacy was grave enough to merit remanding the NEPA document for repair.  See Hopper, Slip Op. at 9.

This is either a double standard for wind or Judge Randolph’s overruling circuit precedent sub silentio.  The regulations BOEM established following the Energy Policy Act of 2005, see 30 C.F.R. § 585.100 et seq., didn’t even exist when this first EIS was developed.  How should BOEM have structured its data demands for subsurface/geophysical elements in that context, especially knowing that Cape Wind Associates was at work with a spatially explicit plan for where to locate the turbine monopiles?

NEPA is Only More than Obstruction if We Make it More

The hardest thing on Cape Wind is separating the rank NIMBYism and wealth-privileged assault on a project because of its threat to the view certain Cape Cod plutocrats enjoy (plutocrats big into oil in at least one case) from the genuine issues that installations of its scale inevitably raise.  When you have coal and oil’s newest best friend, Laurence Tribe, representing you, you can really blur that distinction.

The fishery on the shoal is real if not so important, economically.  The risk of ships colliding with the turbines cannot be wholly eliminated.  Is there some chance that the sediments and bedrock of Horseshoe Shoal won’t support these large turbines?  Wave action and ocean chemistry are severely confounding influences in any such analysis.  If catastrophic failure cannot be ruled out, then there is some risk.

But at what point does an opposition’s overall demeanor start to influence the stock that reviewing courts put in their claims?  The Alliance’s claim that “adequate” investigation wasn’t done into the substrate compares how to similar examples of such investigation for offshore energy development?  That is not a rhetorical question.  It is one that the Alliance, its powerful allies, and the Cape Wind kulturkampf probably should’ve answered by now.

The D.C. Circuit Refuses to Order Much Relief

Cape Wind’s *good* news is that Judge Randolph did not invalidate the lease sale underlying the supposedly defective EIS for its having been based on a flawed environmental impact assessment.  The panel remanded the EIS to BOEM for correction. Those corrections should be relatively easy to make—supposing that Cape Wind still wishes to proceed.  As we’ve noted, Cape Wind’s run may have come to an end out of shear cost-ineffectiveness.

Judge Randolph’s opinion includes a footnote acknowledging that the surveys the panel thought should’ve been part of the original EIS, which were completed in 2012, may well suffice for purposes of the remand.  Cape Wind’s CEO certainly thinks so.  He was quoted in local media saying the following:

Cape Wind is pleased that with today’s federal court decision the bulk of baseless issues that opponents have raised over the years are put to bed, including navigational safety, whales, turtles, Indian artifacts, Migratory Bird Treaty Act permitting, oil spills, and the approval of the project’s Construction and Operations Plan,” Cape Wind CEO Jim Gordon said in a statement. “The Court remanded only 2 matters, neither of which should involve substantial delays.

Of course, the Alliance is hardly done.  Any group that can unite oil barons, (the late) Ted Kennedy, and Mitt Romney is clearly deeply resourced.

A pair of investigative journalists estimated almost a decade ago that the Alliance had spent north of $10M on lobbying and “communications” trying to tank Cape Wind.  See Wendy Williams & Robert Whitcomb, Cape Wind: Money, Celebrity, Class, Politics, and the Battle for America’s Energy Future on Nantucket Sound 95 (2007).  NEPA has unfortunately been one of their best friends.

{Image: Cape Wind’s planned site, ©Woods Hole Institute}

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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