Reconciling Protection of Wildlife with Wind Energy Development

December 8, 2011 marks the two-year anniversary of the Federal District Court in the District of Maryland’s decision to put a $300 million wind energy project on hold due to the possible presence of Indiana bats, a rare bat species listed as endangered under the Endangered Species Act (ESA).[1] The court’s order halted construction on new wind turbines and limited operation of existing wind turbines at the Beech Ridge Energy Project in Greenbrier County, West Virginia.[2] The Beech Ridge Project was set to produce over 186 megawatts of electricity from wind turbines, a renewable energy source.[3]

The Beech Ridge Project case highlights the conflict between two federal environmental policies, one making protection of endangered species and other wildlife a priority and the other promoting renewable energy resource development.[4] On one side, the ESA, the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA) set up legal protections for wildlife that could be harmed by wind turbines.[5] On the other side, numerous government programs like renewable energy portfolios, tax incentives and Federal grants encourage the development of clean energy sources like wind power.[6]

As the Beech Ridge Project case demonstrates, wildlife protection statutes can create serious liability and costly delays for those who wish to construct wind farms.[7] Further, the availability of citizen suits under the ESA[8] and the spotty enforcement of all three acts by the U.S. Fish and Wildlife Service (FWS) can create unpredictability for both wind energy developers and legally protected wildlife.[9] The Department of the Interior (DOI) with its mission of wildlife protection and implementation of the three aforementioned statutes formed the Wind Turbines Guidelines Advisory Committee to develop recommendations for wind energy developers to aid in the assessment and reduction of risk to wildlife.[10] In its 2010 recommendations, the committee set up a tiered approach for a wind energy development in order to reduce the project’s impact on wildlife.[11] The FWS adopted many of the committee’s recommendations in its February 2011 release of two draft guideline documents: the Draft Land-Based Wind Energy Guidelines [Land-Based Guidelines] and the Draft Eagle Conservation Plan Guidance [Eagle Guidance].[12]

The two draft documents purport to provide developers, state organizations, and federal agencies information on the review and selection of sites for wind energy development in order to minimize adverse impacts on plants, wildlife, fish, and their habitats.[13] The tiered system adopted by the Land-based Guidelines allows analysis of the wildlife impacts of a wind energy facility at five different stages of development by posing a series of questions to the developer; the developer proceeds to the next tier once all questions at the previous tier have been adequately answered.[14] The Eagle Guidance aims to assist wind energy developers in avoiding and minimizing negative effects on bald and golden eagles by calling for scientific surveys, assessments, and monitoring proportionate to the risk to eagles posed by the facility.[15] The intent of the Eagle Guidance is to interpret and clarify requirements for receiving and complying with eagle take permits under the BGEPA.[16]

Both the Eagle Guidance and the Land-Based Guidelines urge voluntary adherence, but do not impose any binding requirements on wind energy developers.[17] The Land-Based Guidelines specify that the document is “not intended nor shall [it] be construed to limit or preclude the Service from exercising its authority under any law, statute, or regulation.”[18] The Eagle Guidance clarifies requirements to obtain an eagle take permit under FWS regulations but “do[es] not impose any binding requirements beyond those specified in the regulations.”[19]

However, following the draft guideline documents could significantly reduce the liability faced by wind energy developers under wildlife protection statutes by helping the wind energy developer to know when to obtain a permit and when to abandon a specific location if the risk to wildlife is too high. [20] Further, all tiers and stages in the two draft guideline documents provide a wind energy developer important information about their legal status under the ESA, MBTA, and BGEPA and ensure against unreasonable harm to wildlife.[21] The wind energy industry has generally embraced recommendations developed by the Wind Turbine Guidelines Advisory Committee and clarified in the two draft guideline documents.[22]  Thus, the wind energy industry seems to recognize risks to wildlife and possibility of liability under wildlife protection acts; following the draft guideline documents, while not required, could help developers avoid liability while mitigating risks to wildlife.

 – Carrie Gantt, Associate

 


[1] Animal Welfare Inst. v. Beech Ridge Energy, 675 F. Supp. 2d 540, 580-81 (D. Md. 2009). The ESA makes it illegal to “take” endangered species; to “take” is to “harass, harm, pursue, hunt, shoot, wound, kill trap, capture, or collect.” 16 U.S.C. §§ 1538(a), 1532(19) (2006).

[2] Beech Ridge Energy, 675 F. Supp. 2d at 583.

[3] Id. at 548.

[4] Id. at 542.

[5] 16 U.S.C. §§ 1538(a), 703(a), 668(a) (2006).

[6] Van Ness Feldman, P.C., Drivers of Wind Energy, Energy Law and Transactions §75.02 (Matthew Bender & Co. ed 2010).

[7] See Beech Ridge Energy, 675 F. Supp. 2d at 580-81.

[8] 16 U.S.C. § 1540(g).  See Beech Ridge Energy, 675 F. Supp. 2d at 551-53 (enjoining wind turbine construction despite precautionary measures taken by the developer to prevent risks to wildlife including cave surveys and mist netting).

[9] See e.g. United States v. Moon Lake Ass’n, 45 F. Supp. 2d 1070, 1088 (D. Co. 1999).; Andrus v. Allard, 444 U.S. 51, 57 (1979); United States v. Corbin Farm Serv., 444 F. Supp. 510, 536 (E.D. Cal.) , aff’d, 578 F.2d 259 (9th Cir. 1978).

[10] Letter from David Stout, Chairman of the Wind Turbine Guidelines Advisory Committee to Ken Salazar, Secretary of the Interior (Mar. 4, 2010). The Wind Turbine Guidelines Advisory Committee is composed of members from the wind energy industry, environmental groups, regulatory agencies, and biologists in 2007. Id.

[11] Recommended Guidelines, supra note 56.

[12] Draft Land-based Wind Energy Guidelines, U.S. Fish & Wildlife Serv. (2011), http://www.fws.gov/windenergy/docs/Wind_Energy_Guidelines_2_15_2011FINAL.pdf [hereinafter Land-based Guidelines]; Draft Eagle Conservation Plan Guidance, U.S. Fish & Wildlife Serv. (2011), http://www.fws.gov/windenergy/docs/ECP_draft_guidance_2_10_final_clean_omb.pdf [hereinafter Eagle Guidance].

[13] See Wind Energy Development Information, U.S. Fish & Wildlife Serv., http://www.fws.gov/windenergy/index.html (last visited Nov. 12, 2011).

[14] Land-based Guidelines, supra note 11 at 23.

[15] Eagle Guidance, supra note 11 at 5.

[16] Id.  See Bald and Golden Eagles, U.S. Fish & Wildlife Serv., http://www.fws.gov/migratorybirds/BaldEagle.htm (last visited Nov. 12, 2011).

[17] Eagle Guidance, supra note 11 at 5; Land-Based Guidance, supra note 11 at 2.

[18] Land-Based Guidelines, supra note 11 at 14.

[19] Eagle Guidance, supra note 11 at 5.

[20] Id.

[21] See Land-Based Guidelines, supra note 125 at 17-18; Eagle Guidance, supra note 11 at 24.

[22] See Guidance Regarding Use of the Wind Turbine Guidelines Advisory Committee’s Recommendations, U.S. Fish & Wildlife Serv., http://www.fws.gov/habitatconservation/windpower/wind_turbine_advisory_committee.html (last visited Nov. 12, 2011)

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