By J. Wylie Donald, Partner, McCarter & English
One would think that preliminary estimates of bird fatalities at a proposed 78 MW wind farm in southeastern Minnesota were hardly news. After all, there are over 60,000 MW of wind energy installed in the United States. But the Wall Street Journal has published an op-ed piece by Robert Bryce, Senior Fellow at the Manhattan Instittue, which used that preliminary estimate to rip into the project, New Era Wind, and wind energy in general, accusing the Fish & Wildlife Service of using a "double standard ... when it comes to renewable energy."
The topic ostensibly ruffling Mr. Bryce's feathers is the "incidental take" of bald eagles. The Journal doesn't mince words; here is the leader: "The federal government plans to allow wind turbines to kill bald eagles for 30 years." The permit that was being applied for was an "eagle take permit." Mr. Bryce refers to it as "an eagle-kill permit." One needn't read any further. Killing the national symbol simply must stop. Wind energy is irrevocably bad. According to the piece, "For years, the wind industry has had de facto permission to violate both the Migratory Bird Treaty Act (which protects 1,000 species) and the Bald and Golden Eagle Protection Act. Federal authorities have never brought a case under either law-despite the Fish and Wildlife Service's estimate that domestic turbines kill some 440,000 birds per year."
This vitriol prompted us to dig into this a little. First, a little information on bald eagles. The Fish and Wildlife Service estimates that there are nearly 10,000 nesting pairs of bald eagles in the contiguous United States. When not nesting, bald eagles like to surf thermals, riding easy until unwary prey ventures forth. The population is up from "barely 400" in 1963, when there were grave concerns that the national symbol might not make it into the twenty-first century. Fortunately the bald eagle has made it, and in 2007 it was de-listed from the Federal List of Endangered and Threatened Wildlife and Plants maintained pursuant to the Endangered Species Act.
But delisting did not mean the bald eagle had to make its way in the world alone. It had the Bald and Golden Eagle Protection Act (16 USC §§ 668-668d), which prohibited the "taking" of such eagles without a permit (where taking included killing, and disturbing). Permitted takings were established under federal regulations; pertinent here is 50 CFR § 22.26, which "authorizes take of bald eagles 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 ... (2) For programmatic take: the take is unavoidable even though advanced conservation practices are being implemented." Further, the FWS issued guidance, the Land-Based Wind Energy Guidelines, and a draft guidance specifically focused on eagles, wind turbines and permits. While it is true that New Era's take permit will be the first for bald eagles, it is not the first take permit ever issued and the wind industry has hardly had the opportunity ever to get a permit, as the FWS did not issue its regulations until 2009. From what we have read, New Era Wind is moving forward in accordance with the statute, the regulations and the guidance, and the FWS is responding similarly.
Turning now to the editorial, it is useful to go back to the source. Mr. Bryce has been a burr under the wind industry's saddle for the last few years with several opinion pieces in the Journal on birds and the wind industry. The industry has responded directly to his claims. A press release in 2011, Rhetoric v. Reality: Wind Energy and Birds, offers these numbers based on a 2007 U.S. Forest Service report: "Wind power causes far fewer losses of birds (approximately 108,000 a year) than buildings (550 million), power lines (130 million), cars (80 million), poisoning by pesticides (67 million), domestic cats (at least 10 million), and radio and cell towers (4.5 million)."
It is also interesting to follow the media journey of the FWS preliminary estimate. It came out on January 15. Industrial Wind Action reported the story the next day. Industrial Wind Action, according to its website, "was formed to counteract the misleading information promulgated by the wind energy industry and various environmental groups." The story made it into the mainstream on January 17, when it was reported by Minnesota Public Radio. Two weeks later it was a national news story in the Journal.
We started here considering an editorial about a preliminary estimate, which the FWS acknowledges is a conservative "worst case" and the FWS's permission for New Era to move forward with its application "does not indicate that New Era will automatically be granted an eagle take permit." In other contexts a preliminary estimate, without more, would hardly be worthy of comment; it simply isn't ripe. Not so here, where there is an axe to be ground (or a turbine blade to fail), not only does reasonable rhetoric retreat leaving us with "kill permits," but a small installation out in the woods makes it into the national press.
Renewable energy developers should take note. Notwithstanding strong support for green energy, it may get very dirty in the trenches, and everyone will know about it.
J. Wylie Donald, a partner at McCarter & English, LLP, counsels and litigates for clients on insurance coverage, environmental and products liability matters. Mr. Donald co-chairs the firm's Climate Change and Renewable Energy Practice. He draws on his substantial environmental experience, his prior non-legal technical work, and his deep involvement in risk management to assist clients in understanding and controlling the coming regulatory and non-regulatory impacts of climate change. He has tried cases and argued appeals in the state courts in New Jersey and Maryland, conducted private arbitrations and mediations, and argued motions in federal courts across the nation.
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