Wind Industry Faces Legal Threat Over Birds-Killing

  • Date: 24/01/14
  • Clare Foran, National Journal

A $1 million settlement with a renewables business for birds killed at two of the company’s wind farms marks the first time the U.S. government has pursued legal action against a wind developer for bird deaths caused by turbines.

An ongoing battle over an Interior Department rule-making that allows wind-energy producers to kill bald and golden eagles without prosecution has created a rift between environmental advocates and the wind industry.

“We’re between a rock and a hard place,” said David Yarnold, president and CEO of the National Audubon Society, one of the groups opposed to the rule. “We support a move away from fossil fuels, but there’s no question that this issue has strained our relationship with the wind industry.”

Permits authorizing the accidental death of eagles as a result of collision with wind turbines are nothing new. But when the Interior Department’s Fish and Wildlife Service extended the shelf-life of the permits from five to 30 years last month, the decision ruffled more than a few feathers.

Environmental groups, including Audubon, Defenders of Wildlife, and the Natural Resources Defense Council, loudly criticized the rule, with many of the organizations saying that there isn’t enough credible information about how many eagles are killed by turbines to justify an increase in permit duration.

Research published in the peer-reviewed scientific journal Biological Conservation last year estimated that between 140,438 and 327,586 birds—or a mean of 234,012—are killed annually due to collisions with turbines across the U.S.

Eagle mortality is more difficult to pin down, though it is clear that eagles are only a small fraction of all birds killed by turbines. A study in the Journal of Raptor Research also published last year reported 85 eagle deaths at wind farms in 10 states over a period from 1997 to 2012.

“If you want to know how many eagles are killed because of wind energy, you can’t find that number. That number doesn’t exist,” Yarnold said. “That’s a big part of the problem we have with this rule. It’s like they [FWS] haven’t done the homework.”

Green groups have also voiced skepticism about whether FWS has put in place adequate conservation safeguards.

By applying for a permit, turbine operators agree to a certain amount of oversight from FWS, including a five-year review to determine whether operators are taking steps to minimize bird and eagle mortality on their property.

These steps include switching the turbines on only during times of the day or year when eagles are least likely to be flying overhead, as well as the use of radar or other sighting techniques to spot eagles and shut down turbines when they approach.

Participation in the federal permit program is voluntary. If wind developers do not apply for a permit, however, they risk prosecution for bird deaths at wind farms found to violate any number of federal conservation laws, including the Endangered Species Act, the Migratory Bird Treaty Act, and the Bald and Golden Eagle Protection Act.

Prosecution is rare but may be on the rise. In November, the Department of Justice reached a $1 million settlement with Duke Energy for birds killed at two of the company’s wind farms in Wyoming. The settlement marked the first time the federal government had pursued legal action against a wind developer for bird deaths caused by turbines.

Now that the precedent has been set, the threat of litigation will likely to carry more weight. The American Bird Conservancy recently announced that it is considering bringing a lawsuit against the Ohio National Guard for the planned construction of a wind turbine near Lake Erie.

Full story