Union Neighbors United, Inc. v. Jewell: A Hard Look at Procedural Compliance under NEPA

Abstract

In August 2016, the D.C. Circuit held that the U.S. Fish and Wildlife Service (FWS) met its obligations under the Endangered Species Act (ESA) but failed to comply with the National Environmental Policy Act (NEPA) when it issued an Incidental Take Permit (ITP) for the endangered Indiana bat.1 On the one hand, the D.C. Circuit concluded that FWS did not need to ensure that the proposed project’s minimization and mitigation efforts were “the maximum that can be practically implemented” in order to satisfy the ESA.2 On the other hand, the D.C. Circuit held that FWS violated NEPA by failing to consider a reasonable range of alternatives.3 This ruling breathes “new life”4 into the procedural force and requirements of NEPA, suggesting that courts may insist on greater consistency between an agency’s stated goals for a project and the process by which the agency analyzes alternatives. At the same time, because this particular project posed a threat to an endangered species, the decision’s influence on future cases involving impacts of lesser significance is unclear. At the very least, however, Union Neighbors should spur agencies to take greater care in selecting an appropriate range of alternatives for future NEPA analyses when there are important statutory values implicated by the project’s impacts.