## Facts

- Buckeye Wind LLC proposed constructing and operating a commercial wind farm (up to about 100 turbines) in Champaign County, Ohio, within the range of the endangered Indiana bat.
- Because turbine operation risked incidental bat mortality, Buckeye applied to the U.S. Fish and Wildlife Service (FWS) for an Endangered Species Act (ESA) § 10(a)(1)(B) incidental take permit (ITP).
- Buckeye submitted a Habitat Conservation Plan (HCP) proposing measures to minimize and mitigate take (including operational curtailment at low wind speeds and habitat mitigation).
- FWS prepared an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA), describing the federal action as issuance of the ITP and stating an objective of protecting and conserving the Indiana bat while allowing the project to proceed with take avoided and minimized to the maximum extent practicable.
- The EIS analyzed a no-action alternative, a “maximum” conservation alternative (more curtailment, no predicted take, greater economic loss), a “minimum” conservation alternative (least curtailment, greatest predicted take), and Buckeye’s preferred alternative (intermediate curtailment, with predicted take between the two).
- FWS issued the ITP with conditions based on the HCP and EIS.
- A local citizens’ group sued, asserting (1) ESA violations in the § 10 permit determination and (2) NEPA violations for failure to analyze a reasonable range of alternatives; the district court upheld the agency action.

## Issues

1. Whether ESA § 10(a)(2)(B) required FWS to ensure the HCP included mitigation and minimization measures representing the maximum that can be practically implemented, beyond determining compliance with the statutory “maximum extent practicable” standard.
2. Whether the EIS complied with NEPA’s requirement to study, develop, and describe a reasonable range of alternatives to the proposed federal action.

## Decision

- The court affirmed the judgment rejecting the ESA claim.
- The court reversed on the NEPA claim, holding the EIS did not analyze a reasonable range of alternatives consistent with the agency’s stated objectives.
- The court remanded to FWS for further NEPA proceedings while leaving the ESA portion of the permit determination intact.

## Legal Principles

- Under ESA § 10(a)(2)(B), FWS must determine whether the applicant will minimize and mitigate impacts of take “to the maximum extent practicable,” but the statute does not require FWS to impose or identify the absolute maximum mitigation package that could be practically implemented.
- NEPA requires an EIS to study, develop, and describe appropriate alternatives and to consider a reasonable range of alternatives aligned with the purpose and need statement and NEPA’s environmental policies.
- An alternatives analysis may be arbitrary where the agency’s stated purpose emphasizes conservation outcomes but the EIS evaluates only a narrow set of options closely tracking the applicant’s proposal and fails to consider additional intermediate or more conservation-oriented alternatives.

## Conclusion

The D.C. Circuit held that FWS reasonably applied ESA § 10 when issuing the incidental take permit for potential Indiana bat mortality, but it found the EIS procedurally deficient under NEPA because the agency’s narrowly clustered operational alternatives did not reflect a reasonable range consistent with its stated conservation objectives, requiring remand for additional alternatives analysis.


Union Neighbors United, Inc. v. Jewell, 831 F.3d 564 (D.C. Cir. 2016)