Bird protections create legal hurdles for Cape Wind 

The long-stalled offshore wind project planned for the coastal waters off Massachusetts could face even more legal roadblocks.

Federal appeals court judges signaled skepticism about whether the government had properly determined how to minimize the project’s impact on migratory birds.

The Cape Wind project, intended to be the country’s first offshore wind farm, has been beset by legal and financial problems in recent years.

A panel of judges on the U.S. Court of Appeals for the District of Columbia Circuit today heard oral arguments in the latest legal challenges over the project’s impact on wildlife and how it will affect navigational safety.

Among the issues still pending is a challenge from Pubic Employees for Environmental Responsibility (PEER) and other groups that the Fish and Wildlife Service failed to consider the “best scientific and commercial data available” when determining how to minimize the project’s impact on migratory birds.

A lower court judge ruled in 2014 that FWS had improperly relied on the views of Cape Wind and the Bureau of Ocean Energy Management in determining how to minimize the project’s impact on migratory birds. The service determined that “feathering” the turbines so they do not spin at certain times would reduce bird deaths, but it decided against requiring those measures because BOEM and Cape Wind determined they were not reasonable, as the project would not be financially viable if it had to shut down at those times (E&ENews PM, March 14, 2014).

Later that year, FWS replied by stating it had independently evaluated and rejected the proposed “feathering” technique.

PEER’s attorney, Eric Glitzenstein, today told the court that FWS “totally and utterly” disregarded new information about how to protect migratory species before it issued its determination.

By reopening the record, he said, the agency was compelled to consider the best scientific data available.

Judges on the D.C. Circuit today pressed Justice Department attorney J. David Gunter about why the government hadn’t considered new information.

“You made a new decision,” Judge Patricia Millett, a Democratic appointee, told Gunter. She said it seems “crystal clear” that the government had made a new decision subject to challenge. As a matter of good government, she asked why FWS wouldn’t consider all the information available. “What were you afraid of?”

Judge Robert Wilkins, another Democratic appointee on the panel, told the DOJ lawyer he has “some tough sledding” to persuade him it wasn’t a new determination by the agency.

Gunter argued that the lower court had issued a “narrow remand” and that FWS had legitimately decided that the feathering measure wasn’t reasonable. He also noted that the technique had the potential to protect only a very small number of birds.

Senior Judge A. Raymond Randolph, a Republican appointee, said that because they are protected under the Endangered Species Act, there would by nature be a very small number of birds in question.

A decision in the case, PEER v. Abigail Ross Hopper, is expected within the next year. The judges will weigh in on the ESA challenge as well as other arguments regarding Migratory Bird Treaty Act compliance and navigational safety issues.