Two recent developments signal the federal government’s increased attention to the effects of wind energy projects on birds, including collisions with wind turbines, towers, and power lines, electrocution, and abandonment of nests and habitat.  First, on November 22, 2013, Duke Energy Renewables pleaded guilty to criminal violations of the Migratory Bird Treaty Act by killing 14 golden eagles and 149 other protected birds in the operation of two wind energy projects in Wyoming.  Duke agreed with the Department of Justice to pay $1 million in fines and other payments in this first criminal prosecution of a wind project for bird deaths.  Second, on December 9, 2013, the U.S. Fish and Wildlife Service issued a rule to extend the maximum term of programmatic permits to take eagles under the Bald and Golden Eagle Protection Act from five to thirty years, more in keeping with the average life of wind energy projects.  Prudence suggests that developers of wind energy projects—and other types of projects—take heed of warnings and lessons implicit in these developments

 Three federal statutes regulate the “take” of birds.  The Migratory Bird Treaty Act, enacted in 1918, governs the take of nearly all birds in the United States, 1,026 species in all.  The Bald and Golden Eagle Protection Act, enacted in 1940, protects bald and golden eagles.  The Endangered Species Act, enacted in 1973, protects species listed by the U.S. Fish and Wildlife Service as threatened or endangered, which currently includes 96 bird species in the United States.

The statutes define “take” variously and authorize permits under different criteria and processes.  The Eagle Act and Endangered Species Act authorize the Service to permit the take of birds incidental to otherwise lawful activities.  The Migratory Bird Treaty Act prohibits activities directed at wildlife, e.g., hunting, but less clear is whether it covers the unintended take of birds incidental to otherwise lawful activities, e.g., driving cars, flying airplanes, harvesting timber, or operating oil and gas facilities or wind turbines.  The Eighth and Ninth Circuits (the latter encompasses California) have interpreted the Migratory Bird Treaty Act to prohibit only hunting and other such activities directed at birds, since that was the concern when the statute was enacted.  The Second and Tenth Circuits have read the statute more broadly to impose strict liability for any activities that have the effect, even if unintended, of killing or injuring a bird.  Complicating matters is a mismatch between the broad scope of the statute’s prohibitions (at least in the latter two circuits) and the narrow scope of the Service’s permitting program.  While the Migratory Bird Treaty Act authorizes the Service to permit takes by regulation, the Service has so far limited itself to permitting direct takes and, with isolated exceptions, refrained from permitting the incidental take of birds.  As a result, incidental takes that may be permitted under the Eagle Act or Endangered Species Act may nonetheless remain violations of the Migratory Bird Treaty Act.

In 2009, the Service adopted a rule under the Eagle Act authorizing individual and programmatic permits to take eagles when incidental to, but not the purpose of, an otherwise lawful activity, e.g., operation of a wind energy project.  The rule called for permitees to (1) avoid and minimize take to the maximum extent achievable, (2) conduct adequate monitoring, (3) offset any remaining take with compensatory mitigation, and (4) ensure that the direct and indirect effects of the take are compatible with the preservation of bald and golden eagles.  The rule limited the duration of such permits to five years.

To more generally address the risks of wind projects, the Service also adopted Land Based Wind Energy Guidelines in March 2012 setting forth voluntary measures that project proponents can undertake to evaluate and mitigate potential negative effects of wind energy projects on a range of species, including migratory birds, bats, and bald and golden eagles.  In May 2013, the Service issued further guidance to more specifically address protection of eagles under the Eagle Act.

In its new rule, effective January 8, 2014, the Service has extended the duration of incidental take permits under the Eagle Act to thirty years.  That more closely matches the expected life of wind energy projects and thus enables the Service to afford such projects the long term authorization they realistically need.

The government prosecuted Duke Energy Renewables in Wyoming, within the Tenth Circuit where the Migratory Bird Treaty Act is read broadly to impose strict liability for the killing of birds by any means.  Under its plea agreement with the Department of Justice, Duke will, in addition to paying $1 million, accept five years of probation, obtain an eagle take permit, and implement a five-year compliance plan that includes mitigation measures to minimize bird impacts at four wind projects–measures that could cost $600,000 per year.  The government has agreed not to prosecute Duke under the Migratory Bird Treaty Act or Eagle Act for unpermitted take of birds occurring after the agreement as long as Duke remains in compliance with it.

Apart from auguring increased federal oversight of the effects of wind energy and other types of projects on birds, these developments suggest the importance of implementing practical measures to reduce the risks to birds.  Perhaps most plain is the importance of carefully studying the risks to birds at the outset and throughout the life of a project and consulting with the Service in the process.  Equally important, after having conducted appropriate studies and identified risks to birds, is to address those risks by implementing appropriate mitigation measures or, if necessary, relocating the project.  Compliance with the Service’s wind energy guidelines and eagle guidance, while no guarantee against prosecution, will likely loom large to the Service and Department of Justice when considering whether to pursue enforcement actions and, if so, how vigorously.  When incidental takes are permitted under the Endangered Species Act or Eagle Act, it is useful as well to ascertain that the government will exercise its prosecutorial discretion not to treat such takes as violations of the Migratory Bird Treaty Act.  Until legislation, regulation, or perhaps judicial decision resolves the current confused state of the law, such measures can at least reduce the risk of enforcement actions against those developing and operating projects.

 

David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.

 

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