Federal appeals court Judge Patricia Millett, whose name has been floated as a potential Supreme Court nominee, grilled an Obama administration attorney today over protections for endangered bats.
Millett, an Obama appointee to the U.S. Court of Appeals for the District of Columbia Circuit, criticized the Fish and Wildlife Service’s consideration of ways to minimize killing or harming the endangered Indiana bat species when the agency issued permits to an Ohio wind project.
The nonprofit group Union Neighbors United is challenging the agency’s permit authorizing the project to incidentally kill or harm about 5.2 Indiana bats per year, and no more than 26 Indiana bats over any five-year period or 130 Indiana bats over 25 years. FWS granted Buckeye Wind LLC’s application to build 100 turbines in Ohio, but Union Neighbors United says FWS failed to appropriately consider alternative ways to minimize adverse impacts to bats.
The wind project has been stalled amid challenges.
A lower court last year dismissed Union Neighbors United’s claims, finding that the FWS permit had been issued legally, prompting the group’s appeal to the D.C. Circuit.
Millett today questioned FWS’s methods, pressing the Justice Department lawyer representing FWS in oral arguments to explain whether the agency had in fact considered a "reasonable range" of alternatives to minimize the impact on the endangered bats. Under the National Environmental Policy Act, the agency is not supposed to look at the "total extremes" and identify something in between but instead is supposed to consider reasonable alternatives, she said.
If FWS saw one extreme option as too expensive, "doesn’t that mean you maybe need to throw in another option?" she asked.
Justice Department attorney Robert Parke Stockman defended the agency’s actions, saying FWS wasn’t responsible under NEPA for looking at "every single possible option" or considering each marginal improvement.
Judge Robert Wilkins, another Obama appointee on the panel, similarly questioned whether FWS was responsible for considering a broader range of alternatives.
Judge Sri Srinivasan, a third Obama appointee who is also reportedly in the running for the Supreme Court vacancy, also heard oral arguments in the case. His questions were largely clarifying and didn’t appear to indicate a firm position.
A decision in the case, Union Neighbors United Inc. v. Sally Jewell, will likely be issued within the next year.