Case being reviewed: Union Neighbors United, Inc. v. Jewell, No. 15-5147, United States Court
of Appeals, District of Columbia Circuit, (2016).
Introduction/Background
The National Environmental Policy Act (NEPA) of 1969 lays down procedures for
federal agencies before commencing on major actions. Environmental Assessment (EA) is
mainly conducted to determine whether or not a major federal action is significant or
insignificant. If the action is significant, an Environmental Impact Statement (EIS) would have to
be conducted. Therefore, in practice, an EA leads either to either a decision to do an EIS or to a
Finding of No Significant Impact (FONSI). Considering that NEPA is a procedural law, the
statute has been effectively developed through case law. Notably, courts have been robust in
providing interpretation to NEPA terms and Council on Environmental Quality regulations.
Federal agencies are obligated to consider economically feasible alternatives and deference in
fulfilling the procedural requirements of NEPA (Silvestri, 2018). The Court of Appeal, District
of Columbia Circuit, provided a clearer interpretation for applicability of alternative and
deference in Union Neighbors United, Inc. v. Jewell.
Overview of the case
The Appellants, Union Neighbors United Inc instituted a suit in the United States District
Court for the District of Columbia for declaratory and injunctive relief against Sally Jewell, in
her official capacity as Secretary of the United States Department of Interior. Buckeye Wind
LLC intended to establish a wind farm in Ohio (Union Neighbors United v. Jewell, 2016).
However, the project is a threat to Indiana bat, rare and federally listed endangered species. In
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compliance with Endangered Species Act, Buckeye applied for an Incidental Take Permit (ITP)
with the United States Fish and Wildlife Service and submitted a conservation plan (Union
Neighbors United v. Jewell, 2016). Buckeye agreed to place their turbines away from the natural
habitat of the Indian bats in the plan. They would also monitor the turbines operating time and
velocity. The Service granted the permit.
Union Neighbors United alleges that the Service violated their mandates under NEPA
and failed to make required findings under the ESA. Specifically, the appellants claimed that the
Service refused to consider other alternatives before issuing the permit as obligated under NEPA.
Regarding ESA, the appellants allege that the Service used incorrect standard in finding that
Buckeye to the maximum extent practicable, minimized and mitigated the impacts of such
taking. The appellants claimed that the ITP violated NEPA 42 U.S.C. § 4332(C) (i), (ii) and (iii)
and ESA section 10(a) (1) (B), U.S.C. § 16 U.S.C. § 1531(b) through to 1539(a) (2) (B),
respectively (Union Neighbors United v. Jewell, 2016). Union Neighbors United claimed that the
action would significantly reduce the population of the Indian bat. Specifically, the Service has
documented evidence of Indiana bat colonies in Ohio; the summer provides a natural habitat for
pregnant Indiana bat. The appellants claimed that the proposed construction of the wind energy
facility would require 100 turbines (Union Neighbors United v. Jewell, 2016). Also, the site will
be located in an agricultural area where pregnant Indiana bat inhibits during summer.
Moreover, Union Neighbors United faulted the issuance of ITP to Buckeye as well as its
Record of Decision and Statement of Findings arguing that alternatives were not extensively
exhausted. Union Neighbors United claimed that the issuance of ITP was arbitrary, capricious,
abuse of power and apparent violation of NEPA and ESA (Union Neighbors United v. Jewell,
2016). Union Neighbors United sought summary judgment. The District Court held in favor of
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the Service. The court reasoned that the Service followed laid down procedures in issuance of
ITP under ESA and that the Service’s consideration of alternatives under NEPA was sufficient.
Union Neighbors United appealed to the Court of Appeal, District of Columbia Circuit (Union
Neighbors United v. Jewell, 2016).
Summary of Issues
There were two issues for determination (Union Neighbors United v. Jewell, 2016):
1. Whether the District Court or the Agency’s decision grant for summary judgment de
novo, violated the Administrative Procedure Act (APA) 5 U.S.C?
2. Whether the decision to issue ITP was arbitrary, capricious, abuse of power and apparent
violation of NEPA and ESA 5 U.S.C. § 706(2) (A) (D)?
Analysis
Regarding the first issue, the appellate court had to consider the appellants claim that the
Service did meet NEPA’s standard; to consider all reasonable alternatives. The appellants argue
that the Service failed to take into account economically viable alternatives that would have
taken fewer Indiana bats than Buckeye’s compliance with the Habitat Conservation Plan. The
appellees argued that they had considered a reasonable range of alternatives. Citing Del.
Riverkeeper Network v. FERC, 753 F.3d 1304, 1312-13 (D.C. Cir. 2014) the court pointed that
judicial review of agency actions under NEPA exists purposely to ensure that environmental
impact decisions are reached in a fair manner rather than arbitrary or capricious (Union
Neighbors United v. Jewell, 2016). The court emphasized that a judicial review of agency
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actions can be deferred to an informed agency if it requires special expertise. The court cited the
decision in Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377 (1989)).
The court observed that a range of alternatives to a proposed action is core to EIS. An
agency is mandated to explore reasonable alternatives that are technically or economically
feasible. In considering the appellees reasonable alternative, the court borrowed a test established
in Theodore Roosevelt Conservation P’ship, 661 F.3d at 72, namely, rule of reason. The rule of
reason guides an agency on the extent to which they can discuss an alternative. The rule allows
an agency to look at the real factors and obligates them to reach a reasonable decision in line
with set objectives.
The court stated that a deferential standard could be used mainly relying on the the
applicant’s or sponsor’s knowledge. The court cited Citizens Against Burlington, Inc. v. Busey,
938 F.2d 190, 195 (D.C. Cir. 1991) (Union Neighbors United v. Jewell, 2016). The court
examined the appeelle’s alternative goals. The Service was satisfied that Buckeye’s core
purposes were to ensure that take of Indiana bats is avoided and minimized to the maximum
extent practicable and to guarantee the natural habitat of Indiana bats. The court also considered
the Service argument that the Buckeye Minimal Alternative action reduced speed by 5.0 m/s for
the first six hours after sunset from August to October. The court expressed that it was
unconvinced that the Service had explored a range of economically viable alternatives. The final
EIS ignored the appellants request to consider the impact of a cut-in speed of 6.5 m/s (Union
Neighbors United v. Jewell, 2016). The Service had agreed that a cut-in speed of 6.5 m/s would
reduce bat mortality. The court pointed out that the purpose of an ITP is to protect, conserve, and
improve the habitat of Indiana bat.
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On the second issue, the appellants argued that the Service violated Section 10(a) (2)(B)
of the ESA, 16 U.S.C. § 1539(a)(2)(B)(ii) (Union Neighbors United v. Jewell, 2016). The
provisions obligate an applicant of ITP to the maximum extent to minimize and mitigate the
consequences of taking. The court considered the appellants argument that Buckeye had failed to
demonstrate that they would to the maximum extent practicable, minimize the number of
individual Indiana bats that would be taken. They also claimed that the reduce-impact alternative
was impracticable. In contrast, the court also considered the appeelles official finding that they
were satisfied with Buckeye’s reduce-impact alternative.
The court pointed out that there were two discernible questions. First, to look at what
impacts must be minimized and mitigated, and second, what to consider as the maximum extent
practicable. The standard was particularized in Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837
(1984). The court opined that the questions could be answered by looking at the intentions of
Congress in enacting ESA. In effecting the meaning, the onus is entrusted with Secretaries
responsible for various departments. The court was adamant that in case of deference the
administering agency’s interpretation should reflect to a permissible construction of the statute
(Union Neighbors United v. Jewell, 2016). The court cited Sherey v. Sebelius, 644 F.3d 388, 393
(D.C. Cir. 2011). The court took the view that the Service was free to defer as long as it would
not lead to absurdity. The court considered the distinctiveness of impacts and takings, where the
earlier is the consequence of the take. Regarding the maximum extent practicable, the court
quoted Gerber v. Norton, 294 F.3d 173 (D.C. Cir. 2002) and opined that the reduced-impact
alternative was practicable and in accordance with ESA and that the Service complied with its
obligations under ESA (Silvestri, 2018).
Conclusion of the court’s decision
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The court reversed in part and affirmed the District Court decision. First, the court held
that the appeelles had failed to adhere to NEPA when they failed to consider an economically
feasible alternative that take fewer Indian bats than Buckeye’s plan (Union Neighbors United v.
Jewell, 2016). Secondly, the Service has a right to deference while interpreting ESA (Union
Neighbors United v. Jewell, 2016).
Student Learning Points
According to Collier (2017), the case furthers the intent of NEPA by strengthening
deference given to federal agencies. The case sheds light on the importance of considering
economically feasible alternatives while undertaking major actions. Lastly, the essence of NEPA
is to protect and conserve the environment by undertaking actions that reflects the specific intent
of environmental statutes.
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References
Collier, A. (2017). Union Neighbors United, Inc. v. Jewell: A Hard Look at Procedural
Compliance under NEPA. Ecology Law Quarterly, Volume 44, Issue 2, 527-534.
Silvestri, F. (2018). Wind Power and the Legal Challenges with NEPA and the ESA, Sustainable
Development Law & Policy: Vol. 18 : Iss. 2 , Article 5. Available at:
https://digitalcommons.wcl.american.edu/sdlp/vol18/iss2/5
Union Neighbors United, Inc. v. Jewell, No. 15-5147, United States Court of Appeals, District of
Columbia Circuit, (2016).