Air National Guard Halts Wind Turbine Project in Sensitive Migratory Bird Flyway In Response to MGC Letter

Yesterday, the Air National Guard announced that in response to a letter our firm sent on January 7th on behalf of two leading bird protection organizations – the American Bird Conservancy and the Black Swamp Bird Observatory – the Air National Guard has indefinitely withdrawn its decision to construct and operate a wind turbine near Lake Erie in a critically sensitive migratory flyway for bald eagles and more than 300 bird species.  Our letter constituted a formal notice of intent to sue to the Air National Guard for violations of the Endangered Species Act, Bald and Golden Eagle Protection Act, Migratory Bird Treaty Act, and National Environmental Policy Act, particularly in light of Air National Guard’s refusal to adopt the expert recommendations of the U.S. Fish and Wildlife Service and the Ohio Division of Natural Resources to avoid siting any wind turbines in this critically sensitive location for, or to at least minimize impacts to, federally endangered Kirtland’s warblers and piping plovers, bald eagles, and many other bird species that migrate through the project’s air space.  Additional media on this victory can be found here:  http://www.abcbirds.org/newsandreports/releases/140129.html

Settlement Reached to Protect Cliff Swallows in California

On behalf of various conservation organizations, we reached a settlement with the California Department of Transportation ("Caltrans") concerning that agency’s construction activities at two bridges where a large colony of cliff swallows have nested after completing their six-thousand mile sojourn from South America.　Last year, loose netting placed at the bridges trapped and killed large numbers of swallows and other migratory birds in violation of the Migratory Bird Treaty Act. In response to subsequent litigation we filed in the U.S. District Court for the Northern District of California, Caltrans has now agreed, among other items, to remove all exclusionary netting from the bridges; wherever feasible, to use hard surface exclusionary materials to prevent birds from nesting on areas under construction; and to demolish the existing bridges outside the swallow nesting season. A copy of the press release announcing the settlement is here.

Air National Guard Put on Notice of Legal Violations for Siting Wind Energy Turbine in High-Risk Location for Eagles and Migratory Birds

Yesterday, on behalf of two leading bird protection organizations – the American Bird Conservancy and the Black Swamp Bird Observatory -- we sent a formal notice of intent to sue to the Air National Guard at Camp Perry in Ohio for rampant violations of the Endangered Species Act (“ESA”), Bald and Golden Eagle Protection Act, Migratory Bird Treaty Act, and National Environmental Policy Act.  Despite repeated requests from the U.S. Fish and Wildlife Service and the Ohio Division of Natural Resources to avoid siting any wind turbines in this critically sensitive location for federally endangered Kirtland’s warblers and piping plovers, bald eagles, and more than three hundred species of migratory birds, the Air National Guard disregarded the advice and recommendations of the expert wildlife agencies.  Instead, the Air National Guard refused to engage in formal consultation with the Service under the ESA concerning the federally endangered species, and has refused to seek – much less obtain – an eagle take permit or migratory bird take authorization from the Service before constructing and operating the project.  As a federal agency, the Air National Guard’s refusal to comply with governing legal mandates not only sets a bad precedent for other renewable energy projects, but also underscores why an environmental impact statement was required for this project – an analysis which the Air National Guard failed to conduct.  The letter can be viewed here. 

Appeal Filed Over Nuclear Regulatory Commission’s Refusal To Consider Mitigation For Severe Nuclear Accidents

On behalf of NRDC, last week we filed a Petition for Review in the D.C. Circuit challenging the Nuclear Regulatory Commission’s (NRC) recent decision concerning Severe Accident Mitigation Alternatives (SAMAs) at the Limerick nuclear power plant outside Philadelphia.  Although NRC is preparing a NEPA Supplemental Environmental Impact Statement (SEIS) as part of the relicensing process for the power plant, and recognizes that SAMAs – which can reduce the severity of serious nuclear accidents – must be considered as part of that NEPA process, the agency recently ruled that NRDC may not challenge the adequacy of the SAMA analysis because the agency’s regulations foreclose such a challenge. The Petition seeks to overturn that ruling in order to force NRC to conduct a legally sufficient SAMA analysis during relicensing.

Queen Anne’s County Zoning Board of Appeals Denies Routine Violator’s Conditional Use Request For Mining Project

In a unanimous (3-0) decision this Wednesday, the Queen Anne’s County Zoning Board of Appeals denied a request by Merrick Farm LLC for conditional use approval to continue operating a major sand and gravel mine on its property in Ingleside, MD, which was shut down in September of this year for extensive County violations.  We represented several neighboring landowners and Queen Anne’s Conservation Association, a Maryland organization whose mission is to monitor impacts upon and to promote and protect the natural resources, rural character and small towns of Queen Anne’s County, Maryland.  The Board ruled that, in light of the company’s repeated violations and misstatements to County and State agencies and officials concerning its prior mining operations, its application failed to meet two of the three general use standards imposed by Queen Anne’s County Code § 18:1-94, and thus must be denied.

Massive Solar Projects Imperiling the Desert Tortoise

On behalf of Defenders of Wildlife, we have sent the Bureau of Land Management and the Fish and Wildlife Service a letter detailing violations of the Endangered Species Act in connection with approval of two massive solar projects in the dwindling remaining habitat of the imperiled Desert Tortoise.  Although the FWS itself, along with other experts, have long recognized that Tortoises require several miles wide corridors to insure population and genetic stability, the FWS has issued a Biological Opinion (Bi-Op) that will allow construction of the two projects even though they will constrict these corridors – particularly the vitally important corridor between one of the projects and the Lucy Gray Mountains – to well below that width.  Adding insult to injury, the FWS also approved the solar companies’ plans to take the approximately 200 large Tortoises that live on the project sites and "translocate" them into the very corridor near the Lucy Gray Mountains that is going to be too narrow for the species’ long-term habitat needs.  The Bi-Op also makes wildly optimistic assumptions about the success of the translocation efforts, while at the same time ignoring the overall impacts to the Tortoise, and its recovery prospects, of the many habitat-destroying projects occurring in this area at this time. A copy of the Notice Letter is available here.

State Department to Release Records On Keystone Pipeline Conflicts of Interest

On behalf of Friends of the Earth, in July we filed a FOIA suit against the State Department for refusing to release records concerning conflicts of interest associated with the Keystone XL Pipeline approval process (see our July post for details).  In a filing with the Court this week, the State Department agreed to begin releasing records on December 6, and to complete the record review process within 60 days. See http://thehill.com/blogs/e2-wire/e2-wire/330431-state-dept-to-hand-over-keystone-xl-docs-to-enviro-group