Wind And Winged Wildlife: Increased Federal Oversight Of Wind Energy

December 23, 2013 by  
Filed under Green Energy News

Federal oversight of wind energy’s adverse impacts to birds,
bats and other wildlife will increase due to two recent
developments: the pending first programmatic take permit under the
Bald and Golden Eagle Protection Act (“BGEPA”)and the
first criminal enforcement action for avian fatalities under the
Migratory Bird Treaty Act (“MBTA”).Wind farms face a
somewhat unique environmental challenge: a clean source of energy
with a potential dirty impact to wildlife. Debate over the correct
level of governmental enforcement and regulation will continue, but
impacts to bald and golden eagles, migratory birds and other
federally protected species play an increasingly significant role
in the siting, construction and operation of wind projects. Going
forward, wind projects will encounter an increased need for
comprehensive due diligence and a critical assessment of a
project’s impact to birds so as to ward off potential future
criminal enforcement. This Client Alert will highlight some of the
likely new challenges that may arise to help place lenders in a
better position to assess the risks related to wind projects and to
provide developers with an overview of actions and measures to
minimize or avoid potential criminal enforcement.

Since wind is a relatively new source of energy in the U.S. and
has grown at a rapid pace, regulation of wildlife fatalities and
injuries due to collisions with wind turbines and met towers is in
some what uncharted water, unlike collisions with automobile,
planes, utility wires, buildings and oil and gas pits. Considerable
effort has been made by government, private industry and
environmental groups to reduce adverse avian impacts. New voluntary
federal guidelines have been issued, comprehensive pre-construction
and post-operation studies have become more common and wind
projects typically implement mitigation measures, such as siting
turbines away from known nests and other high risk areas, creating
habitat buffers and using radar, underground transmission lines and
other methods to reduce the risk of collision. However, until the
legal requirements become clear, developers bear a burden to
determine what needs to be done to comply with the law even when a
high priority is placed on minimizing any adverse wildlife
impact.

FEDERAL BIRDPROTECTION LAWS

There are two federal laws that regulate the “take” of
birds, the BGEPA, which regulates bald and golden eagles, and the
MBTA, which regulates approximately 1,000 species of migratory
birds.1 Violations can lead to civil and criminal penalties and
potential imprisonment for six months to two years per violation.
Although felony prosecutions under the MBTA only apply to the
actual or intended sale or barter of migratory birds and migratory
bird parts, misdemeanour charges may be levied against any person
that “takes” a migratory bird for any other reason. The
BGEPA does not contain a distinction between felony and
misdemeanour charges for first time offenders.

BGEPA defines “take” to include “pursue, shoot,
shoot at, poison, wound, kill, capture, trap, collect, molest or
disturb.” However, the definition of “take” under
the MBTA is ambiguous, leading courts to disagree over whether the
MBTA is limited to intentional takes or if it also includes
incidental takes, which means a take that occurs as a result of,
but is not the purpose of, an otherwise lawful activity. For
instance, the Eighth and Ninth Circuits have limited
“take” under the MBTA to hunting and related conduct,
which would thereby exclude the wind industry from liability for
avian fatalities. However, both the Second Circuit and Tenth
Circuits have adopted strict liability interpretations of the MBTA
holding various defendants accountable for avian fatalities, even
if the “takes” were indirect and not willful.

THE FWS VOLUNTARY GUIDELINES

To lower the risk of takes due to the construction and operation
of wind energy projects, the FWS adopted the Land Based Wind Energy
Guidelines (“FWS Guidelines”) on March 23, 2012. The FWS
Guidelines are voluntary, not regulations, and set forth five tiers
of pre and post-construction studies that seek to evaluate and
address potential negative impacts of wind energy projects on
species of concern, including migratory birds, bats, and bald and
golden eagles.

Additionally, on May 2, 2013, the FWS released the Eagle
Conservation Plan Guidance Module 1–Land-based Wind Energy,
Version 2 (“FWS Eagle Guidance”) which is designed as a
supplement to the FWS Guidelines. Like the FWS Guidelines, the FWS
Eagle Guidance is voluntary and lays out a staged approach to
siting new wind projects. It also contains in-depth guidance
relating specifically to the protection of bald and golden eagles
and compliance with the BGEPA.

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