Wind Permits Allowing Eagle Deaths Face Blowback

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PALM SPRINGS, CA - MARCH 27: Giant wind turbines are powered by strong winds during sunset on March 27, 2013 in Palm Springs, California. According to reports, California continues to lead the nation in green technology and has the lowest greenhouse gas emissions per capita, even with a growing economy and population. (Photo by Kevork Djansezian/Getty Images)
National Journal
Clare Foran
Jan. 23, 2014, 1:34 p.m.

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.

Such pro­posed lit­ig­a­tion and the Duke En­ergy set­tle­ment have also el­ev­ated the is­sue of bird deaths from tur­bines to a high­er pro­file in the na­tion­al de­bate over how to strike a bal­ance between con­ser­va­tion and clean en­ergy.

Con­trary to what some en­vir­on­ment­al­ists say, FWS in­sists that the per­mit­ting pro­cess ac­tu­ally works to pro­tect wild­life.

“We’re not go­ing to is­sue a per­mit un­less we think there’s an over­all con­ser­va­tion value,” said Dav­id Cot­ting­ham, seni­or ad­viser to the dir­ect­or of the ser­vice.

But en­vir­on­ment­al­ists re­main un­con­vinced — a stance that has put them at odds with the wind in­dustry, which de­fends the per­mit­ting pro­cess as ne­ces­sary to provide reg­u­lat­ory cer­tainty for wind de­velopers.

“Most en­vir­on­ment­al or­gan­iz­a­tions sup­port the wind in­dustry, but what we’re say­ing right now is just be­cause you’re pro­du­cing clean en­ergy, that doesn’t mean you have carte blanche to run rough­shod over en­vir­on­ment­al law,” said Robert Johns, a spokes­man for the Amer­ic­an Bird Con­servancy.

Now that the reg­u­la­tion is fi­nal, crit­ics of the rule-mak­ing are weigh­ing their op­tions. How they re­spond will de­term­ine how much the rift widens between en­vir­on­ment­al­ists and the wind in­dustry.

“Ad­dress­ing is­sues as com­plex and im­port­ant as this one nat­ur­ally cre­ates some ten­sions,” said Katie Umekubo, an NRDC at­tor­ney fo­cused on re­new­able-en­ergy pro­jects in the West. “But we all agree pro­tect­ing eagles is a top pri­or­ity.”

NRDC and Audu­bon want the ser­vice to go back to the draw­ing board.

“At this time we’re still ex­plor­ing all our op­tions,” Umekubo said, adding that the group is “con­tinu­ing to urge the FWS to re­con­sider the rule-mak­ing.”

A num­ber of con­ser­va­tion groups, in­clud­ing Audu­bon and ABC, have also in­dic­ated a will­ing­ness to con­sider lit­ig­at­ing against the rule.

“We’re look­ing at a range of ac­tions,” Yarnold said. “The first is ask­ing [In­teri­or] Sec­ret­ary [Sally] Jew­ell to take a second look at the rule. There’s also an­oth­er rule-mak­ing un­der­way at In­teri­or that will take a broad look at the per­mit­ting pro­cess, and we’ll be look­ing to en­gage in that. But there are po­ten­tial leg­al rem­ed­ies as well.”

For its part, the wind in­dustry, which has worked with green groups in the past to de­vel­op con­ser­va­tion strategies for wind pro­jects, is quick to point out that tur­bines ac­count for a low per­cent­age of bird deaths com­pared to oth­er man-made threats such as win­dows in build­ings.

The Amer­ic­an Wind En­ergy As­so­ci­ation also hopes to keep an­im­os­ity over the rule at bay by fo­cus­ing on the big­ger pic­ture, en­vir­on­ment­ally speak­ing.

“The U.S. Fish and Wild­life Ser­vice, en­vir­on­ment­al groups, and oth­ers all agree the biggest threat to wild­life is cli­mate change,” said Tom Vin­son, AWEA vice pres­id­ent of fed­er­al reg­u­lat­ory af­fairs. “[And] wind en­ergy is one of the key solu­tions avail­able today to mit­ig­ate cli­mate change.”

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