March 01, 2013

How federal wildlife laws impact development of wind energy

Wind energy is one of the most established and promising of the renewable energies. The U.S. Department of Energy reports that wind power could provide 20 percent of the nation’s electricity by 2030, support 500,000 jobs, reduce greenhouse gas emissions, and save four trillion gallons of water (a 40-year supply for the city of Phoenix). While the wind industry is generally touted as a beneficial, clean source of energy, wind development is not entirely without environmental consequences. For example, potential effects to federally listed species and migratory birds from activities associated with construction and/or operation of wind energy facilities may include loss of habitat, habitat fragmentation, habitat avoidance, and collisions with turbines, towers, or transmission lines. These impacts will continue to play a significant role in wind facility siting, development, and operation nationwide. The federal laws that affect domestic wind farms with respect to migratory birds and federally listed species—the Endangered Species Act (ESA), the Migratory Bird Treaty Act (MBTA), and the Bald and Golden Eagle Protection Act (Eagle Protection Act)—have various implications on wind development projects and several tools are available to comply with each law.

ESA regulation and compliance

The ESA prohibits the unauthorized “take” of endangered species. “Take” is defined by the ESA as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” 16 U.S.C. § 1533. The U.S. Fish & Wildlife Service (Service) issued regulations that define “harm” as “an act which actually kills or injures wildlife . . . [and] may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. §17.3.

The ESA can and does affect wind energy development and operations. For example, in 2009, a federal court enjoined the operation and expansion of a wind facility until the developer obtained an incidental take permit for potential take of the endangered Indiana bat. Animal Welfare Institute v. Beech Ridge Energy, LLC, 675 F. Supp. 2d 540 (D. Md. 2009). Not all potential impacts to listed species rise to the level of “take’ as defined in the ESA, however, and consultation with qualified biologists and legal counsel is advisable to assess, avoid, and minimize the potential impacts to listed species. There are three basic ESA compliance options for the construction and operation of a wind energy facility: take avoidance, authorization through the ESA section 7 interagency consultation process, and authorization through an ESA section 10(a) incidental take permit.

To utilize the take avoidance approach, the developer must construct and operate the wind energy facility to minimize the likelihood of take of listed species to the point that it is not reasonable to obtain an incidental take permit. Whether the activity rises to the level of take initially is determined by the wind developer, who accepts the risk that the Service through an enforcement action, or a third party through an ESA citizen lawsuit, may challenge that conclusion. Early consultation with a qualified biologist is critical to avoid those challenges. One current tool to use as an ESA avoidance approach is implementation of the Service’s Land-Based Wind Energy Guidelines (Guidelines), which were originally developed through a facilitated, collaborative effort of the Wind Turbine Guidelines Advisory Committee. The Guidelines are voluntary and provide a process to evaluate risks and plan for species of concern when siting, constructing, and operating wind facilities. The Guidelines state that “if a violation occurs the Service will consider a developer’s documented efforts to . . . adhere to the Guidelines.”

ESA compliance can also occur through the ESA section 7 interagency consultation process, which prohibits federal agencies from carrying out, authorizing, or funding activities that jeopardize the continued existence of a listed species in the wild or result in the adverse modification of designated critical habitat. 16 U.S.C. § 1536(a)(2). Section 7 is frequently triggered by a non-federal party applying for a permit under another regulatory scheme (e.g., a Clean Water Act section 404 permit). It is also triggered by projects needing permission to operate on federal lands (e.g., a Bureau of Land Management right-of-way grant). At the end of the section 7 consultation process, the Service issues a biological opinion and an “incidental take statement,” which authorizes take of listed species incidental to the agency action. 16 U.S.C. § 1536(b)(4).

ESA section 10(a)(1)(B) authorizes the Service to issue an incidental take permit allowing a “take” that is incidental to an otherwise lawful non-federal activity. 16 U.S.C. § 1538(a)(1)(B). An applicant seeking such a permit must prepare a habitat conservation plan (HCP) demonstrating that adverse effects on the species will be minimized and mitigated to the maximum extent practicable. Processing an HCP is a time-consuming process that frequently requires a year or more, includes compliance with the National Environmental Policy Act (NEPA), and requires opportunity for public comment. The Service’s issuance of an incidental take permit is also considered a federal action that triggers an ESA section 7 “intraService” consultation. Incidental take permits are becoming a much more common mode of ESA compliance for the industry, particularly since Beech Ridge. There are several pending incidental take permits for individual wind projects around the country as well as two multi-state permits, the Great Plains Habitat Conservation Plan and the Midwest Wind Energy Multi-Species Habitat Conservation Plan, which is under development.

MBTA regulation and compliance

The MBTA makes it unlawful to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, offer to purchase, purchase, deliver for transportation, transport, or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird. . . .” 16 U.S.C. § 703. “Take” is not defined in the MBTA, but the Service’s implementing regulations define it as “to pursue, hunt, shoot, wound, kill, trap, capture or collect.” 50 C.F.R. § 10.12. The MBTA regulates a narrower set of effects, albeit across far more species, than does the ESA, because there is no parallel provision under the MBTA prohibiting “harm” to MBTA-protected species and there is no mechanism for “incidental take” authorization. A district court recently held that the death of migratory birds resulting from lawful commercial activity does not constitute “take” under the MBTA. United States. v. Brigham Oil & Gas, L.P., 840 F. Supp. 2d 1202 (D. N.D. 2012). However, another district court recently held that a defendant is liable under the MBTA for bird mortalities if it is reasonably foreseeable that its activities would result in bird deaths. United States v. Citgo Petroleum Corp., 2012 WL 4068675 (S.D. Tex. 2012). Although the MBTA contains no mechanism for incidental take authorization, there are several considerations regarding MBTA compliance, which include prosecutorial discretion and utilization of avian protection plans (APPs).

Unfortunately, if one assumes that bird collisions with wind farms violate the MBTA, there is virtually no method to avoid some level of violation, as essentially all wind farms cause some death of migratory birds, although at a tiny fraction of other anthroprogenic causes of bird mortality such as birds colliding with buildings or being killed by housecats. Wind developers are left to rely on the Service’s prosecutorial discretion as a result, but as of this writing, there have been no reported instances of a Service prosecution of a wind farm under the MBTA. According to a 2005 U.S. Government Accountability Office report, in most cases, the Service has declined to prosecute wind energy facilities under the MBTA because of the “relatively low levels of mortality” caused by such facilities.

An evolving method to address MBTA compliance for wind generation facilities is development and implementation of APPs. APPs have been commonplace in the electric transmission industry for a number of years, but wind industry use has been limited. In general, APPs include protocols to employ during the construction and operation of wind farms that avoid, minimize, and monitor avian mortalities. There are several unresolved issues with respect to APP implementation in the context of wind facilities. First, it is unclear whether the Service’s formal “approval” of an APP triggers NEPA and is subject to review under the Administrative Procedure Act (APA). Second, there is a question as to what extent the Service may exercise blanket prosecutorial discretion as to prospective activities. Finally, should the Service exercise its prosecutorial discretion for an extended period, there is question as to whether that commitment is subject to third-party review under the APA.

Special consideration for eagles

Bald and golden eagles receive additional legal protections pursuant to Eagle Protection Act. 16 U.S.C. §§ 668–668d. The act prohibits the “take, sale, purchase, barter, offer for sale, export or import, at any time or in any manner” of any bald or golden eagle, alive or dead, or any bald or golden eagle part, nest, or egg. 16 U.S.C. § 668. In 2009, the Service established a permitting process for take of bald and golden eagles where the take is “compatible with the preservation of the bald eagle and the golden eagle; necessary to protect an interest in a particular locality; associated with but not the purpose of the activity; and (1) For individual instances of take where the take cannot practicably be avoided; or (2) For programmatic take where the take is unavoidable even though advanced conservation practices are being implemented.” 50 C.F.R. § 22.26.

The Draft Eagle Conservation Plan Guidance (Draft Eagle Guidance) published by the Service in 2011 specifically addresses wind-facility projects, explains how the Service will approach the issuance of programmatic take permits for wind projects. The Draft Guidance provides guidelines for the development of Eagle Conservation Plans that support the issuance of programmatic permits. The Draft Eagle Guidance provides recommendations for conservation practices and adaptive management to meet Eagle Protection Act standards. Although the Service has not finalized the Draft Eagle Guidance at this time, a few wind developers are using its framework to apply for eagle programmatic permits. The act and the accompanying Draft Eagle Guidance present a number of problems for wind developers, such as high compliance costs, no assurances because the Service can impose additional restrictions in the future, and a mandatory 5-year permit term with no guarantee of renewal. In April 2012, the Service did, however, issue a Proposed Rule to revise Eagle Protection Act regulations to allow for 30-year programmatic permits (but seemingly without assurances). The Service also issued an Advance Notice of Proposed Rulemaking to gather public comment on potential revisions to the programmatic permit regulations. Even with the Service’s recent actions, it remains unclear how current problems will be resolved. Meanwhile, the Service is pursuing enforcement actions for wind farms alleged to have caused take of eagles.

What’s needed

Wind energy facilities have been operating within the United States for many years, and bring some acknowledged environmental benefits. Yet, there remains a need for ongoing and increased collaborated efforts among numerous stakeholders to bolster the collective knowledge of the effects of wind development upon listed species and migratory birds, develop techniques to minimize adverse impacts on birds, and develop efficient regulatory assurances with respect to construction and operation of wind facilities.