Chris Clarke reports a fairly striking bit of mission-reversal at the US Fish and Wildlife Service.
A federal judge has spiked a U.S. Fish and Wildlife Service plan to issue 30-year-long permits to industry that would allow companies to kill bald and golden eagles.
Judge Lucy Koh of the U.S. District Court in San Jose ruled Monday that USFWS acted illegally when it approved the permits without analyzing the policy’s likely environmental impact as required by federal law. Koh ordered the agency to conduct a full environmental assessment of the policy. The permits, which would have allowed accidental “take” of bald and golden eagles at wind power sites and other industrial facilities, were created after wind power companies objected that a previously proposed system of five-year permits wouldn’t allow them to obtain business loans.
Um. Wow. I would have thought it was the priority at USFWS to protect the wildlife, not the wind power companies and other industrial sites.
According to this week’s court ruling USFWS Director Dan Ashe implemented the 30-year take permits over the strenuous objections of USFWS scientists and other staff, who said the 30-year rule was scientifically unjustifiable and legally flawed. Now, Judge Koh has backed up those Fish and Wildlife staffers.
So of course one wonders why the director ignored the strenuous objections of the skilled staff. “Fuck the science, we need more wind power?” Sustainable energy is a hugely important goal, of course, but the staff must know that, so…maybe their strenuous objections had merit.
In September 2009, USFWS established the first-ever procedure by which it would issue take permits for eagles under the Bald and Golden Eagle Protection Act (BGEPA). That law prohibits a wide range of harm to both bald and golden eagles, ranging from intentional killing to harassment, capture, disturbance, and trapping. The take permits would provide a means for companies to avoid prosecution for violating BGEPA if their otherwise legal activities ended up injuring or killing eagles.
Wind turbines are lethal to birds, that’s a fact.
But wind power development started growing dramatically after September 2009, and wind companies — which pose an increasing threat to eagles and other raptors as they spread across the landscape — complained that five-year permits would make them financially unstable. Lenders would be less likely to write loans longer than five years for wind companies whose ability to operate might change if they killed too many eagles and didn’t have their permits renewed.
Which is exactly why the permits should not be for more than five years. (I know that because Chris goes on to explain it. I’m anticipating him. I just like the subtle way he tells us there that the companies want the 30 year permits so that they can go ahead and kill more eagles with impunity.)
USFWS established the 30-year eagle take permits in 2013, outraging environmental groups.
USFWS made that final rule without conducting an environmental assessment of the 30-year permit extension, despite USFWS staff urging the agency consider drafting an Environmental Impact Statement on the policy. Plaintiffs argued that USFWS was legally obligated to review the policy under the terms of the National Environmental Policy Act, the federal law that mandates Environmental Impact Statements for potentially destructive projects and policies.
And defendants argued…what? That they just didn’t want to? That the National Environmental Policy Act isn’t the boss of them? That just because they’re a federal agency that doesn’t mean they have to obey federal law?
Judge Koh’s ruling confirmed suspicions voiced by many outside observers that USFWS staff hadn’t changed their minds when agency policy shifted. The shift from 5-year to 30-year eagle take permits didn’t reflect new thinking on the part of the federal scientists charged with safeguarding our nation’s wildlife: it came as Director Ashe sought to address industry concerns about access to loans.
The Feds are always under pressure to do what industry wants. It’s hard not to wonder darkly about Director Ashe’s relationships with lobbyists.
USFWS staff met with Ashe in October 2012, according to the ruling, to urge him to conduct a full Environmental Impact Statement analysis of the effects of longer take permits. Dismissing the chances that anyone would challenge the legality of the rule in court, Ashe ordered his staff to prepare the 30-year permit rule.
Three years later, a federal judge has echoed those USFWS staff, except that her recommendation can’t be blithely disregarded, as it has the force of law. Lesson for Dan Ashe: listen to your staff. You just wasted three years.
Can we send him a bill for those three years?