On March 14, 2014, in Public Employees for Environmental Responsibility et al. v. Beaudreu et al. [click here to view opinion], the US District Court for the District of Columbia issued a decision on multiple challenges to the Cape Wind Offshore Wind Farm based on alleged violations of federal laws, including the Administrative Procedure Act, the Endangered Species Act, the Migratory Bird Treaty Act, the National Environmental Policy Act, the Outer Continental Shelf Lands Act, the Coast Guard and Maritime Transportation Act of 2006, and the National Historic Preservation Act.[1]  The Court rejected all of the claims, except the Court granted summary judgment in favor of the plaintiffs on the Endangered Species Act claims, remanding the case to the US Fish and Wildlife Service and the National Marines Fisheries Service to make independent determinations regarding whether the feathering operational adjustment was a reasonable and prudent measure and to issue an incidental take statement for right whales, respectively.

The Court’s discussion and holding regarding the Migratory Bird Treaty Act (“Bird Act”) is particularly noteworthy for project developers. Over the past several years, anti-renewable-energy and anti-development groups have increasingly challenged projects using the Bird Act’s prohibitions by way of the Administrative Procedure Act, claiming that projects with even the mere potential to kill migratory birds unintentionally need a permit to take birds before they can receive federal approvals (or that the federal agency itself must obtain a permit).

The Court rejected this argument. “Given the statutory and regulatory text, the Court finds that the [Bureau of Ocean Energy Management or “BOEM”] did not violate the Migratory Bird Treaty Act by merely approving a project that, if ultimately constructed, might result in the taking of migratory birds.” The Court explained that “on its face, the Migratory Bird Treaty Act does not appear to extend to agency action that only potentially and indirectly could result in the taking of migratory birds.”

The Cape Wind opinion is part of a growing trend of case law holding that private plaintiffs may not prospectively enforce the Bird Act’s prohibitions based on a theory that the project has a potential to take birds.