This month a federal court in Maine rejected a challenge to a permit issued by the U.S. Army Corps of Engineers (Army Corps) for the Oakfield wind power project. The court determined that the Army Corps did not violate the Endangered Species Act (ESA) or the Bald and Golden Eagle Protection Act (Eagle Protection Act) in issuing the permit. The court’s decision is part of a growing trend of cases concluding that a federal agency’s obligations under the Eagle Protection Act and Migratory Bird Treaty Act are limited where the agency permits or authorizes a private project.
In Protect Our Lakes v. U.S. Army Corps of Engineers, No. 13-cv-402 (D. Me. Feb. 20, 2015), the plaintiffs filed suit against the Army Corps over the issuance of a Clean Water Act Section 404 permit that authorized the Oakfield wind project developer to permanently and temporarily fill in certain wetlands during project construction. The plaintiffs challenged the permit on a number of grounds, but abandoned all but their claims under the ESA and Eagle Protection Act during summary judgment. Under the ESA, the plaintiffs argued that the Army Corps improperly relied upon incomplete data to analyze the impact of the project’s construction on Atlantic salmon and did not obtain an incidental take statement in light of the determination that the project was not likely to adversely affect salmon. The court denied relief under both claims, holding that the ESA required use of the best data available, which can include incomplete data. Op. at 8 (“the best scientific data available standard does not require agencies to have complete information before acting”). The court also held that no incidental take statement is required where an action is not anticipated to result in the take of a listed species. Op. at 9. Continue Reading