Matthew Ahrens / Of Council / Environmental Practice Milbank / Tweed, Hadley & McCloy / www.milbank.com
Duke Energy was recently prosecuted for the accidental death of 14 eagles and other migratory birds at several of its wind farms. The government’s reaction provides lessons for the wind industry. The solar industry should also take note.
Federal oversight of wind energy’s adverse impacts to birds, bats, and other wildlife will increase because of two recent developments: the 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). 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 a 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 article highlights challenges that may arise and help place lenders in a better position to assess the risks related to wind projects, and provide developers with an overview of actions and measures to minimize or avoid potential criminal enforcement.
Because wind is a relatively new source of energy in the U.S., the regulation of wildlife fatalities and injuries due to collisions with wind turbines and met towers is somewhat uncertain. 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 measure include siting turbines away from known nests and other high risk areas, creating habitat buffers, along with 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 must be done to comply with the law even when a high priority is placed on minimizing any adverse wildlife impact.
Federal bird protection laws
Two federal laws regulate the “take” of birds: the BGEPA, which regulates bald and golden eagles, and the MBTA, which regulates about 1,000 species of migratory birds. 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, misdemeanor charges may be levied against those that take a migratory bird for any other reason. The BGEPA does not contain a distinction between felony and misdemeanor charges for first time offenders.
Although the Endangered Species Act has an established enforcement history, it also regulates the “take” of endangered or threatened species including certain avian species. However, this article focuses only on the BGEPA and the MBTA.
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, the Second 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 Fish and Wildlife Service (FWS) adopted the Land Based Wind Energy Guidelines (“FWS Guidelines”) in March, 2012 to lower the risk of takes from construction and operating wind energy projects. The voluntary FWS Guidelines (not regulations) set forth five tiers of pre and post-construction studies that evaluate and address potential negative impacts of wind-energy projects on species of concern.
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 supplements FWS Guidelines. Like the Guidelines, the voluntary FWS Eagle Guidance lays out a staged approach to siting new wind projects. It also contains in-depth guidance relating to the protection of bald and golden eagles and compliance with the BGEPA.
First BGEPA eagle take permit
Unlike the BGEPA, the MBTA does not provide a permit allowing for the unintentional take of a migratory bird during otherwise lawful activities. In 2009, the FWS established new rules (50 CFR 22.26 and 22.27) which provide for the issuance of two types of five-year incidental take permits under the BGEPA: individual and programmatic.
Both permits authorize a take of bald and golden eagles when the take is associated with, but not the purpose of, an otherwise lawful activity. Individual take permits are issued for an isolated take that cannot be practicably avoided. Programmatic take permits are issued for instances of an unavoidable take that may recur due to the nature of the take, such as the operation of a wind facility, even after the implementation of advanced conservation practices. This article focuses on the Eagle Take Permit.
To obtain such a permit, the project developer must avoid and minimize takes to the maximum extent achievable, conduct adequate monitoring, offset any remaining take through compensatory mitigation, and ensure that direct and indirect effects of the takes are compatible with the preservation of bald and golden eagles. An Eagle Take Permit qualifies as a federal action and triggers need for an environmental review under the National Environmental Policy Act.
On December 9, 2013, the FWS published a final rule in the Federal Register to extend the maximum term of the Eagle Take Permit to 30 years because the average life of a wind project extends beyond the existing five year term limit. The final rule went into effect January 8, 2014. The FWS has granted no Eagle Take Permits, even though about 15 applications have been submitted since the FWS authorized issuance in 2009. However, the first Eagle Take Permit may be issued soon. In September 2013, the FWS released a draft environmental assessment for a five year Eagle Take Permit for the Shiloh IV Wind Project in California. The Eagle Take Permit would allow taking up to three eagles over the permit’s five-year term. The public-comment period ended November 29, 2013 and the FWS will render its decision in 2014. Additionally, on December 4, 2013, the FWS published a notice of intent for a NEPA review for another Eagle Take Permit. The FWS’s recent actions are a sign that Eagle Take Permits may become necessary for wind projects with a potential adverse impact bald or golden eagles.First criminal enforcement
On November 22, 2013, Duke Energy Renewables entered into a plea agreement with the U.S. DOJ after being charged with two class B misdemeanors under the MBTA for the death of 149 migratory birds and 14 golden eagles at two wind facilities in Wyoming. Under terms of the Duke Settlement, Duke will be placed on a five-year probation and required to pay $1 million dollars in fines, obtain an Eagle Take Permit, and implement a five year, environmental-compliance plan. The plan must include comprehensive mitigation measures to minimize further avian impacts at four of Duke’s wind facilities, and could cost up to $600,000 per year. The Duke Settlement did not contain a requirement to enjoin current or future operations of either project. Even if future takes during the probationary period occur, as long as Duke remains in compliance with the terms of the settlement.
It is important to note that, as avian fatalities were discovered, Duke promptly reported them to the FWS, worked with the Service to reduce future fatalities, and implemented numerous mitigation measures including monitoring, radar, and curtailment. The settlement acknowledged this effort and made clear the fine was reduced and potential additional charges were dropped as a result. Nonetheless, such actions did not absolve Duke from liability because mitigation measures voluntarily put in place prior to the MBTA conviction were insufficient to overcome the fact that the projects were constructed in a high-risk area despite preliminary studies showing that avian fatalities would likely occur.
Lessons from the Duke Settlement
The settlement offers several important lessons for the development of new projects.
First, it is important to conduct extensive due diligence throughout the life of a project and consult with the FWS starting at the earliest development stages and continuing through operation as appropriate. However, simply conducting all recommended surveys and studies, and consulting with the FWS is not sufficient. If adverse impacts to avian species are identified, it is the developer’s responsibility to move the project to a new location or implement extensive mitigation measures to reduce the risk of avian fatalities. The Duke Settlement demonstrated that the FWS’ recommendations must be given high priority, especially with respect to siting in high-risk areas. The DOJ’s announcement of the settlement said, “carefully siting turbines so as to avoid and minimize the risk as much as possible, is critically important because, unlike electric distribution equipment and guyed towers, at the present time, no post-construction remedies, except ‘curtailment’ (i.e., shut-down), have been developed that can ‘render safe’ a wind turbine placed in a location of high avian collision risk.”
Second, following the FWS Guidelines and its Eagle Guidance, implementing mitigation measures is by no means a “get out of jail free card.”
Documented efforts to comply with the guidelines and communicate with the FWS will likely be taken into consideration by the FWS and DOJ when determining whether and to what extent it should bring an enforcement action should a violation of the BGEPA or the MBTA occur. Duke’s good-faith effort to reduce fatalities and documented coordination with the FWS did lead to reduced penalties and a decision by the FWS to limit enforcement to MBTA violations.
Third, the settlement demonstrates a strong likelihood of future enforcement against the wind industry which, until now, has not encountered enforcement under the BGEPA or the MBTA. Prior to the settlement, there were no criminal convictions of a wind developer for the unintentional take of a bird protected under BGEPA or MBTA. The Associated Press says the FWS is investigating bird deaths at over 18 wind projects about six of which have already been referred to the DOJ for potential enforcement. The the specific projects were not publicly identified.
Fourth, adopting accepted industry specific mitigation measures may reduce the risk of enforcement. In a letter sent to U.S. Senators David Vitter and Lamar Alexander on the same day as the Duke Settlement, Elliot Williams, Deputy Assistant Attorney General of the DOJ, indicated that “in determining whether to prosecute a {wind energy} company for its violations of the MBTA, both the {DOJ} and the FWS consider whether the company has knowingly failed to adopt industry specific practices to improve their compliance with the law.” Such industry-specific practices may include, among other things, compliance with the FWS’ Guidelines and Eagle Guidance.
In addition, while a limited number of cases have been brought against other energy companies from 2009 to 2013, to our knowledge, none have been brought against building developers, airlines, automobiles or cat owners, all of which have a much larger impact on avian species. Recent studies, for example, estimate over 900 million annual bird fatalities due to collisions with buildings, and over six million annual bird fatalities due to collisions with communication towers. In contrast, even the FWS’s estimates only 440,000 annual bird fatalities due to collisions with wind turbines and met towers. Consequently, the Duke Settlement is not necessarily an indication of widespread enforcement against any and all violations of the BGEPA or the MBTA, but it is an important reminder to wind developers and lenders that a high level of attention must be placed on due diligence, the careful siting of turbines, and the implementation of mitigation measures would reduce the risk of a take under the BGEPA and the MBTA.
Actions to reduce the risk of enforcement
Because the law surrounding violations of the BGEPA and MBTA against wind projects is still evolving, it is advisable for developers and lenders to err on the side of caution by preparing to avoid or minimize the risk of adversely impacting protected avian species. For developers, it is of crucial importance to conduct extensive surveys to identify the presence and potential impact to avian species and to communicate with the FWS and local wildlife agencies prior to the construction of wind projects. For lenders, it is advisable to contact legal counsel at the start of the financing process to determine the current status of the law, the level of risk for a particular project, and the measures that the lender should request from the developer to minimize liability to the greatest extent possible.
Each project is unique. There is no single approach to mitigation and avoidance of a violation of the BGEPA or the MBTA. The use of mitigation measures will vary depending on project location, design, risk of avian impact, and other factors, so it is advisable for developers to create a plan with input from the FWS to consider the requirements specific to each project. However, a few recommendations for developers and lenders include:
Prior to site selection and pre-construction
- Initiate consultation with the FWS, state, and local wildlife agencies.
- Gather information from publicly available sources to assess the likelihood of avian impacts at potential sites.
- Site the project in previously developed areas, when possible, such as agricultural lands, to minimize impact to previously undisturbed habitat.
- Conduct avian, bat, and wildlife studies for one to two years.
- Site turbines away from areas with identified high bird and bat concentrations and create buffer zones around sensitive habitat in the project area.
- Provide training for construction and project personnel on how to avoid impacts to protected species during construction and operation.
- Discuss results from pre-construction studies with the FWS and develop a strategy to mitigate any unavoidable adverse impacts.
During construction
- Continue studies and monitor impacts to protected species and maintain an ongoing dialogue with the FWS.
- Implement recommended or voluntary mitigation measures.
- Develop a Bird and Bat Conservation Strategy as outlined in FWS Guidelines.
- Prepare an Eagle Conservation Plan and apply for an Eagle Take Permit if bald or golden eagles are identified in the project area.
Post-construction and operation
- Conduct several years of post-construction surveys and continue consultation with the FWS.
- Monitor the site periodically for avian or bat fatalities.
- Immediately report any avian fatalities.
- Work with the FWS and state and local wildlife agencies to implement additional mitigation measures to reduce the risk of future takes.
Looking ahead
The effect of the Duke Settlement on enforcement against wind developers going forward is still unclear, although future enforcement against other wind developers appears increasingly likely and more action will be necessary to mitigate adverse impacts to avian wildlife. Whether this reflects the start of a long line of charges and what would trigger enforcement remains to be seen. It is certain, however, that the public and regulatory attention placed on wind energy’s impacts to birds, bats, and other wildlife is rapidly increasing.
Enforcement may extend to solar developers as well. Recently, certain solar farms have also come under scrutiny for potential impacts to birds caused by “solar flux,” a high concentration of solar energy that results in intense heat. To date, no formal enforcement proceedings have been taken against any solar project, but solar developers should also consider conducting avian studies, adopting mitigation measures, and applying for an Eagle Take Permit to reduce the potential for take of protected species. Furthermore, developers should consider the impacts of a project to avian and wildlife species protected under the Endangered Species Act. WPE
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