D.C. CIRCUIT HOLDS THAT THE FEDERAL GOVERNMENT VIOLATED THE ENDANGERED SPECIES ACT IN APPROVING CAPE WIND

The U.S. Court of Appeals for the District of Columbia Circuit has issued a ruling agreeing with our arguments that the federal government violated the Endangered Species Act and the Administrative  Procedure Act in approving the controversial Cape Wind project proposed to be built off the Massachusetts coast.  To reduce the impact of the project on two imperiled bird species – the piping plover and roseate tern – biologists with the U.S. Fish and Wildlife Service (“FWS”) proposed that the massive turbines associated with the project be shut off during limited periods of highest risk to the birds.  However, government higher-ups rejected that conservation measure on the grounds that it would impair the financial feasibility of the project, although the FWS completely ignored evidence submitted by the plaintiffs demonstrating that the measure would have a miniscule impact on project financing.  The Court of Appeals held that the FWS’s action was arbitrary and capricious.  The Court further held that the project cannot proceed without compliance with the Migratory Bird Treaty Act and without further analysis of environmental impacts pursuant to the National Environmental Policy Act.  A copy of the ruling is here.