ELR Citation: 45 ELR 20151
No(s). 14-CV-02830 (N.D. Cal. Aug 11, 2015) (Koh, J.)

A district court held that FWS violated NEPA when it issued a rule increasing from five years to 30 years the maximum duration of programmatic permits for wind energy developers to take bald and golden eagles. FWS issued the rule in hopes of promoting renewable energy projects. But when it issued the rule, it chose not to prepare an EA or EIS. Instead, it relied on a two-part categorical exclusion to avoid NEPA review, claiming that the rule was "administrative" in nature and that the rule's environmental effects were "too broad, speculative, or conjectural" to lend themselves to meaningful analysis. But FWS' reliance on the exclusion was unreasonable. Just because a regulation might reduce an agency's administrative burden does not necessarily mean that the regulation itself is administrative in nature. Nor did FWS adequately explain why the rule's environmental effects were too broad to allow for meaningful NEPA review. FWS asserted that the rule would be "broadly implemented," but such a cursory statement is insufficient for purposes of the exclusion. Even were FWS' reliance on the exclusion reasonable, extraordinary circumstances preclude reliance on the categorical exclusion, as substantial evidence indicates that the rule may have "highly controversial" environmental effects on bald and golden eagles. The court, therefore, set aside the rule and remanded it to FWS for further consideration. Shearwater v. Ashe, No. 14-CV-02830, 45 ELR 20151 (N.D. Cal. Aug. 11, 2015) (Koh, J.).