## Facts

- Cape Wind Associates, LLC proposed the Cape Wind Energy Project: construction, operation, and maintenance of 130 offshore wind turbines in Nantucket Sound, with an estimated 20-year lifespan.
- The project sought to supply substantial regional electricity and support Massachusetts renewable-energy requirements.
- Federal approval was required because the project would be located on the outer continental shelf and subject to environmental review and permitting.
- After the Energy Policy Act of 2005, the responsible federal agency became the Minerals Management Service, later reorganized as the Bureau of Ocean Energy Management (BOEM).
- During preparation of the Environmental Impact Statement, an agency geologist repeatedly warned (2006–2007) that Cape Wind’s geological and geophysical surveys were inadequate and did not sufficiently address geological hazards.
- BOEM issued a Final Environmental Impact Statement in 2009 and granted Cape Wind a commercial lease in 2010.
- Environmental groups and local opponents challenged the approvals in federal district court under NEPA, the Outer Continental Shelf Lands Act (OCSLA), the Endangered Species Act (ESA), the Migratory Bird Treaty Act (MBTA), and related theories; the district court largely granted summary judgment to the federal defendants and Cape Wind.
- Plaintiffs appealed, and the D.C. Circuit consolidated the appeals.

## Issues

1. Whether BOEM violated NEPA and OCSLA by issuing the FEIS and lease without first obtaining and evaluating sufficient site-specific geological and geophysical data, despite internal expert warnings.
2. Whether BOEM and the Fish and Wildlife Service complied with the ESA in evaluating effects on protected bird species.
3. Whether the MBTA provided a basis to invalidate BOEM’s approvals based on expected migratory bird mortality.
4. What remedy was appropriate if BOEM’s approvals were procedurally defective.

## Decision

- The D.C. Circuit affirmed in part, reversed in part, and remanded.
- The court held BOEM acted arbitrarily and capriciously by proceeding with approval steps without obtaining and analyzing the required site-specific geological and geophysical information.
- The court rejected the principal ESA challenges, concluding the agencies’ Biological Opinions and related determinations were not shown to be arbitrary or capricious.
- The court rejected the MBTA-based challenge as a basis to set aside the federal approvals in this context.
- The court remanded to BOEM for further proceedings to obtain and consider the required data, rather than invalidating every aspect of the approvals.

## Legal Principles

- NEPA requires an agency to take a “hard look” at environmental consequences and to make decisions on an adequately informed record; an agency may not defer collection and analysis of essential, project-specific information when regulations require it for approval.
- Under the APA, agency action is arbitrary and capricious when the agency disregards material deficiencies in the record, including unresolved concerns from agency experts about required technical data.
- Under OCSLA and implementing regulations for offshore energy development, BOEM must require sufficient site-specific geological and geophysical data to evaluate seafloor and sub-seafloor conditions, including geological hazards, before proceeding with key approval decisions.
- ESA scientific judgments reflected in Biological Opinions receive substantial judicial deference; challengers must show the agencies’ evaluation of available data and risk conclusions are unreasonable.
- The MBTA’s criminal enforcement framework does not, without more, supply a standalone basis to invalidate a federal agency’s permitting decision premised on anticipated third-party operational impacts.
- Remedies for administrative error may be limited to targeted remand when the defect is specific and remand can address it without unnecessary disruption.

## Conclusion

The D.C. Circuit required BOEM to obtain and evaluate adequate site-specific geological and geophysical data before proceeding with approvals for the offshore wind project, while largely sustaining the agencies’ ESA determinations and rejecting the MBTA as a vehicle to invalidate the federal approvals.


Pub. Emps. for Env’tl. Resp. v. Hopper, 827 F.3d 1077 (D.C. Cir. 2016)