First Criminal Conviction Under Migratory Bird Treaty Act For Wind Farms

By E. Lynn Grayson

Duke Energy Renewables Inc., a subsidiary of Duke Energy Corp., pled guilty in the deaths of golden eagles and other birds at two wind farms in Wyoming. According to the Justice Department, it is the first criminal conviction under the Migratory Bird Treaty Act for unlawful avian takings at wind projects.

Under a plea agreement filed in the U.S. District Court for the District of Wyoming, subsidiary Duke Energy Renewables Inc. was sentenced to pay fines, restitution and community service totaling $1 million. It also was placed on probation for five years, during which it must implement a plan aimed at preventing bird deaths at the company's four wind projects in the state.

Prosecutors alleged that Duke failed to make all reasonable efforts to build the projects in a way that would avoid the risk of avian deaths by collision with turbine blades, despite prior warnings about this issue from the U.S. Fish and Wildlife Service. The plea agreement cited approximately 163 deaths of migratory birds, including golden eagles, other raptors, larks, buntings and other birds at the Campbell Hill and Top of the World wind facilities in Converse County, Wyoming.

The Fish and Wildlife Service has estimated that bird mortality from wind turbines amounts to 440,000 a year, a number contained in budget information released for fiscal year 2013. The service estimated that mortality would exceed 1 million a year by 2030 as wind farms proliferate.

The payments for the $1 million in fines breaks down this way:

• $400,000 will go to the North American Wetlands Conservation Fund, which is federally directed

• $100,000 will be paid to the State of Wyoming

• $160,000 will be paid to the National Fish and Wildlife Foundation

• $340,000 to a conservation fund

The American Wind Energy Association (AWEA) pointed out in a statement on the case that experts view "climate change as the single greatest threat to wildlife and their habitats." Since wind power is produced without creating greenhouse gas emissions, it is a "key to both meeting our nation's energy needs and protecting wildlife in the U.S. and abroad." Indeed, wind power is a key part of fighting climate change and mitigating its damage.

    E. Lynn Grayson, Partner, Jenner & Block

Read more at Corporate Environmental Lawyer Blog by Jenner & Block LLP.

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