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Environmental, Natural Resources, & Energy Law Blog

Wind energy and wildlife: how should regulations draw the line between acceptable and unacceptable damage? - Mikalah Singer

August 19, 2020

Wind energy and wildlife: how should regulations draw the line between acceptable and unacceptable damage? wind is not a perfect solution, but if we address its problems it is pretty close.

                                            Mikalah Singer - LLM Student

 

When discussing renewable energy, the damaging environmental impacts are often left out. But why is that? It could be because it puts a large scratch on the shiny trophy of problem solving that many environmentalists want to show off to the world. Or it could be because we do not yet know the true extent of the environmental impacts caused by renewable sources yet. It is easy to hold up solar, hydro, and wind as examples of a clean future when environmental impacts are kept under the rug. Even though renewable energy is not a perfect solution, it does provide society’s best opportunity to protect wildlife and biodiversity from the effects of climate change and fossil fuel infrastructure. The reality is we either have the damaging impacts on biodiversity that accompany using both renewable sources and fossil fuels, or only the impacts of using renewable sources. The combination of using both fossil fuels and renewable energy creates a more damaging impact on biodiversity than the effects of renewable energy alone.

 

We should embrace wind energy for what it has to offer, but not without boundaries. While wind energy offers a reprieve from the effects of fossil fuel energy production, it does not come without its own consequences. Significant harm can come to wildlife such as eagles as a result of wind energy. In order for wind energy to have minimal detrimental effects on ecosystems and wild, energy producers must be held accountable for the harm that they cause through regulations on siting, infrastructure, and production. Minimizing the negative effects energy production has such as its contributions to climate change should be a priority, but not at the expense wildlife due to zero-accountability regulations.

 

Both humans and wildlife face challenges for survival as a result of climate change. The more frequent storms, heat, and intense droughts can directly harm animals, their habitats, and the ecological balance in which they thrive.1 Climate change is already having an impact on biodiversity and ecosystems, posing a growing risk with the accelerated pace of change and interactions with other drivers of ecosystem demise including land use.2 In order to mitigate the worst of the impacts of climate change, global carbon emissions need to be dramatically reduced.3 Wind energy is a good tool to help mitigate climate change, ensure a sustainable future, and allow future and present generations to meet their energy needs.4 Wind energy options are able to reduce greenhouse gas emissions while being a sustainable choice due to their limitless availability of wind.5 Wind energy sources that are able to meet societal energy requirements have the potential to provide energy services with zero or nearly zero emissions of both greenhouse gases and other air pollutants.6

 

The impact on climate change on the effectiveness of protected areas reveals the need for a re-evaluation of conservation objectives.7 The United Nation’s Intergovernmental Panel on Climate Change (IPCC) and the United States multi-federal agency National Climate Assessment have noted that it is critical that wildlife risks from development of renewable energy sources needed to mitigate climate change need to be successfully addressed for the energy transition.8 It is paramount to evaluate the risks of renewable energy sources because it is necessary to protect wildlife from all development in order to maintain healthy and thriving wildlife populations.9

 

Land-based wind power (“wind”) is a critical factor in America’s transitioning energy market. A transformation to greener energy sources is necessary to achieving the carbon pollution reductions needed to protect wildlife and people from the dangers posed by climate change.10 Despite the needed switch to renewable sources including wind, the build out of wind power presents the potential for adverse impacts to some species of wildlife and habitat. Failure to address wildlife risks related to wind power could result in regulatory or economic slowdown for the needed production of wind power.11

 

Wind power has grown substantially in the last two decades. The U.S. wind industry grew 9% in 2017, and growth has continued since then.12 Wind power helps to reduce the risks of fossil fuels to public health, wildlife, and outdoor economy while providing jobs, tax revenue, and income to rural areas strengthening local economies, and improving quality of life for American families.13

 

Wind development can lead to the physical destruction and change of avian habitat, but habitat loss from wind energy development is not viewed as a significant threat to birds. Habitat loss only occurs in approximately 2-5% of the total wind energy facility footprint.14 Additionally wind facilities can be built in areas where the land can be used for more than one purpose. Agricultural landscapes and other lands where the natural area has already been compromised can be used as sites for wind farms in order to minimize the negative effects on unharmed land.15

 

Wind turbines have negative effects on birds, bats, and other vulnerable species. These effects are not isolated incidents and will be prevalent through the life cycle of wind energy. Despite there being negative effects, the harm caused by wind turbines are not enough to cease the continued use and expansion of the energy source. The environmental and biodiversity impact is minimal compared to that of traditional fossil fuels. We need to be taking a utilitarian view, becauseThe harm that wildlife face from climate change that is that is exacerbated by fossil fuel production and combustion is vastly greater than the impacts of wind energy., and we need to be taking a utilitarian view.

 

The United States Fish and Wildlife Service (USFWS) is the lead agency responsible for safeguarding protected wildlife and enforcing Federal wildlife laws. The key Federal laws at issue for wildlife and wind energy are the Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act, and the Endangered Species Act. The take of wildlife species and protection against habitat destruction are covered under the federal wildlife laws that have been named above. The protections that these statutes supply implicate actions that cause harm to wildlife. In the construction, development, and maintenance of energy sources—both renewable and traditional fossil fuel—wildlife can be harmed through direct impacts such as being injuredy or killed or indirectly from habitat disturbances.

 

The USFWS hasve created Land-Based Wind Energy Guidance to help wind energy project developers minimize impacts on wildlife and their habitats.16 Additionally, the USFWS created Eagle Conservation Plan Guidance in an effort to deal with issuing “take” permits for eagles, as well as guidance for Indiana Bats.17 The guidance plan provides in-depth advice for conserving bald and golden eagles.18 The plan includes guidance on sitting, constructing, and operating wind power facilities.19 Unfortunately, the guidance contained in the plan is not mandatory prior to receiving a permit for eagle take.20 Beginning in 2016, the USFWS extended the maximum permit duration for incidental take from 5 to 30 years while stipulating that permitted takes must be “compatible with the preservation” of the species.21 “Preservation” of the species is defined as “consistent with the goals of maintaining stable or increasing breeding populations in all eagle management areas.”22 Wind and solar energy developers should be able to show that they are attempting to mitigate their harm, and that these sources are more consistent with the overall objective of the BGEPA than traditional energy sources.

 

Presently, the guidance created for wind energy development is only voluntary for companies to follow. These guidelines, although voluntary, help to lay out processes for determining what species are present at a site and what steps developers should take to avoid, minimize, and offset wildlife impacts if needed. Although the guidelines are voluntary, there are mandatory actions under the Bald and Golden Eagle Protection Act that need to be followed in order to receive and eagle take permit. Some examples of guidelines include removing and relocating certain arrays or individual turbines, restoring habitat in a different location to offset habitat that has been disturbed by a wind farm, and restricting the time of year in which companies can undertake construction. The guidelines are intended to promote compliance with relevant wildlife laws and regulations, but they are not intended to be construed to limit or preclude the USFWS from exercising its authority under any law, statute, or regulation, or from conducting enforcement action against any individual, company or agency.23

 

The Land-Based Wind Energy Guidelines use a tiered approach for assessing potential adverse effects to species of concern and their habitats. The tiered approach is an iterative decision-making process regarding the efficient use of developer and wildlife agency resources. The tiered approach provides the opportunity for evaluation and decision-making at each stage, but does not require that every tier or every element of a tier be implemented within each project.

 

The voluntary adherence to the guidelines are encouraged through consideration during the enforcement of the MBTA and BGEPA.24 It is not possible to absolve individuals or companies from MBTA or BGEPA liability, but the Office of Law Enforcement focuses its resources on investigating and prosecuting those who take migratory birds without identifying and implementing reasonable and effective measures to avoid the take.25 The Service considers the following of these guidelines as identifying and implementing reasonable and effective measures to avoid the take.26

 

The Eagle guidelines are intended to be implemented in conjunction with other actions recommended in the Wind Energy Guidelines.27 These guidelines are, likewise, voluntary since wind operators are not legally required to seek or obtain an eagle take permit.28 The take of an eagle without a permit is a violation of BGEPA and could result in prosecution.29 The Eagle guidelines can help a wind developer to adequately meet the guidelines for a permit.30 Under the BGEPA, incidental take is authorized where the take is compatible with the preservation of the eagle species, is necessary to protect an interest in a particular locality, is associated with, but not the purpose of the activity, and cannot practicably be avoided.31

 

Developers must satisfy a number of requirements in order to receive an incidental take permit under the BGEPA. Developers must comply with all avoidance, minimization, or other mitigation measures specified in their individual permits to mitigate the detrimental effects on eagles, including indirect and cumulative effects. Producers may also be required to monitor impacts to eagles from the permitted activity for up to three years after completion of the activity as set forth in a separate management plan.32 For ongoing activities that are likely to continue causing take such as a wind farm, periodic monitoring will be required for as long as the data are needed to assess impacts to eagles.33 Additionally, applications for eagle incidental take permits for wind facilities must include pre-construction eagle survey information collected according to specific standards.34 The specific standards include recordings of eagle flight activity, dates and times of weather conditions during the survey samples, proposed number of turbines and their specifications as well as coordinates of the proposed turbines.35

 

Federal requirements can differ from state requirements and state guidelines can differ from one another.36 There are two general approaches for state wind energy facility siting. The first approach designates siting authority to state agencies in conjunction with local authorities, and the second approach cedes siting authority to local governments.37 A majority of states who use the first approach may limit local authority through state law.38 25 states the siting of wind facilities require approval by state or local government bodies depending on size, while 5 five states reserve the power to regulate the siting of all wind facilities regardless of size.39 The second approach provides local governments with substantial autonomy to regulate the siting of wind facilities through their traditional land use authority.40

Presently, the usefulness of both federal regulations and guidance are in question. The Trump administration wants to remove the threat of punishment on energy companies, construction crews, and other organizations that kill birds incidentally.41 The administration argues that businesses that accidentally kill birds should be able to operate without fear of prosecution.42 The change in regulations would allow fossil fuel, as well as wind producers to build new infrastructure without concern for birds that may be harmed as a result of their actions.43 This new interpretation of the MBTA and changes to the regulations limit MBTA’s ban on take of migratory birds to not include incidental take including deaths caused by wind turbines. This change essentially removes USFWS’s leverage over developers to have them follow the voluntary guidelines. USFWS previously had the discretion to charge wind companies with criminal violations of the MBTA for killing birds, but if these changes are solidified they will have zero ability to hold energy companies accountable for their impact on birds.

 

In order to best project theThe best way to protect present wildlife and future wildlife is by embracing wind energy should be embraced. Presently, the research involving wildlife harm and wind energy reflects that the consequences of wind energy are not as large as some may presume, but these consequences should still be taken into account and minimized prior to wind facility construction. The voluntary guidance for protecting wildlife under federal laws combined with the wide range of regulations at the state levelever present threat on protection laws the Trump administration holds is not the most beneficial way to move forward with wind energy development. Wind energy development should be regulated byfor guidelines that are not voluntary, but mandatory in order to actually minimize the harm to wildlife, and state regulations should become more streamlined in order to create an easier process for wind facilities to be constructedfederal protection laws should be used to help hold energy developers accountable through their specific regulations and the voluntary guidance.

  

 

Mikalah –

 

You’ve selected a topic that’s obviously timely and important, and you have a lot of good information here. With some additional work I think you’ll have a good product.

 

Substantively, this post does not raise what is perhaps the most significant legal development for wind energy right now. The Trump Administration issued a new legal interpretation of the MBTA – and is currently in the process of amending MBTA regulations accordingly – which holds that the MBTA’s ban on take of migratory birds does not apply to incidental take, including deaths caused by wind turbines or any other energy facility. This essentially removed leverage FWS previously exercised over developers to encourage them to abide by the “voluntary” guidelines; while FWS previously had (and occasionally exercised) the discretion to charge wild companies with criminal violations of the MBTA for killing birds, it now has zero ability to go after wind energy developers regardless of their facilities’ impacts on birds. In fact, there have been stories of Interior officials virtually encouraging entities to save costs by ignoring impacts of their actions on birds. A post on wind and other renewable energy development must consider this development.

 

I’m also a bit confused by the first part of this post. The title suggests the post will explain where to draw the line between acceptable and unacceptable impacts to birds as a result of wind energy development, and then seems to come close to arguing that we need to prioritize wind energy no matter its impacts on birds (which would be consistent with the new MBTA interpretation). While I think one could certainly make a credible case for such an energy strategy, the post in the end goes the opposite direction and calls for mandatory limitations on wind development to better protect birds. However, the post then briefly calls for states to “streamline” siting for wind facilities, seemingly another about-face.

 

I suggest thinking a bit harder about the question the post poses in its title – where should we draw the line between better protecting birds and other affected species from development of wind and similar renewable energy sources, and going whole hog on constructing these renewable energy facilities to battle climate change, a threat which of course also has tremendous impacts on birds and other species, including humans? Admittedly this is a very tough question, but that’s the one the blog sets for itself. The post should give readers a thumbnail summary of where it comes out on this question right from the start, and then use the bulk of the post to make and support arguments for this position. Remember to analyze how we need to interpret, implement, or change the law to help go in the direction the post advocates.

 

Finally, look for opportunities to edit to get rid of passive verbs and improve the phrasing and flow of the post’s prose. I’ve identified a few examples of issues to look for.

 

Good luck! You’ve put a lot of effort into this draft, and I’m eager to see your final result. Let me know if you have any questions or would like to get together to discuss this.

 

1 Effects of Climate Change, WWF, https://www.worldwildlife.org/threats/effects-of-climate-change (last visited Mar. 3, 2019).

2 See Intergovernmental Panel on Climate Change, Climate Change and Land: IPCC Special Report on Climate Change, Desertification, Land Degradation, Sustainable Land Management, Food Security, and Greenhouse gas fluxes in Terrestrial Ecosystems (2019).

3 Intergovernmental Panel on Climate Change, Global warming of 1.5 °C: An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty (2018).

4 See Phebe Asantewaa Owusu & Samuel Asumadu-Sarkodie, A review of renewable energy sources, sustainability issues and climate change mitigation, 3 Cogent Engineering 1, 1 (2016).

5 Id.

6 N.L. Panwar, S.C. Kaushik & Surendra Kothari, Renewable and Sustainable Energy Reviews, 15 Renewable and Sustainable Energy Rev. 1513, 1514 (2011).

7 Int’l Renewable Energy Agency, Global Energy Transformation: A roadmap to 2050 (2019).

8 See Intergovernmental Panel on Climate Change, Global warming of 1.5 °C: An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty (2018).

9 Id.

10 Jim Murphy, Lauren Anderson & National Wildlife Foundation, Responsible Wind Power and Wildlife, Nat’l Wildlife Found 1, 2 (2019).

11 Id.

12 Id. at 2.

13 Id.

14 Regan Dohm & David Drake, Wind Energy Effects on Birds in Renewable Energy and Wildlife Conservation 95, 102 citing Fox et. al., 2006 at 102 (Christopher E. Moorman, Steven M. Grodsky & Susan P. Rupp eds., 2019).

15 Regan Dohm & David Drake, Wind Energy Effects on Birds in Renewable Energy and Wildlife Conservation 95, 102 citing Zimmerling 2013 at 102 (Christopher E. Moorman, Steven M. Grodsky & Susan P. Rupp eds., 2019).

16 U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines, U.S. Fish and Wildlife Service (Mar. 23, 2012), fws.gov/ecological-services/es-library/pdfs/WEG_final.pdf.

17 Eagle Conservation Plan Guidance, U.S. Fish and Wildlife Service Division of Migratory Bird Management (Mar. 2013), https://www.fws.gov/migratorybirds/pdf/management/eagleconservationplanguidance.pdf; Indiana Bat Section 7 and Section 10 Guidance for Wind Energy Projects, U.S. Fish and Wildlife Service (Oct. 26, 2011), https://www.fws.gov/midwest/endangered/mammals/inba/pdf/inbaS7and10WindGuidanceFinal26Oct2011.pdf.

18 Id.

19 Id.

20 Id.

21 Eagle Permits; Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests, 81 Fed. Reg. 242, 91494 (Sept. 16, 2016); 50 C.F.R. § 22.26.

22 50 C.F.R. § 22.26; 50 C.F.R. § 22.3.

23 See U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines, note 17, at 1.

24 Id. at 6.

25 Id.

26 Id.

27 See Eagle Conservation Plan Guidance, note 17, at vii.

28 Id. at iii.

29 Id.

30 Id.

31 50 C.F.R. § 22.26(a).

32 50 C.F.R. § 22.26(c)(1).

33 50 C.F.R. § 22.26(c)(2)(i).

34 50 C.F.R. § 22.26(d)(3)(ii)(A-F).

35 This is not an exhaustive list.

36 State Legislative Approaches to Wind Energy Facility Siting, National Conference of State Legislatures (Nov. 1, 2016), https://www.ncsl.org/research/energy/state-wind-energy-siting.aspx.

37 Id.

38 Id.

39 Id.

40 Id.

41 See Ula Chrobak, One of the most important laws protecting birds in the US just got gutted, Popular Science (Feb. 10, 2020), https://www.popsci.com/story/environment/migratory-bird-treaty-trump-gutted/; Chris D’Angelo, Trump administration slashes protections for migratory birds, High Country News (Jan. 31, 2020), https://www.hcn.org/articles/climate-desk-trump-administration-slashes-protections-for-migratory-birds; Lisa Friedman, Trump Administration Moves to Relax Rules Against Killing Birds, New York Times (Jan. 30, 2020), https://www.nytimes.com/2020/01/30/climate/trump-bird-deaths.html; Alexandra Kelley, Trump administration proposes rollbacks in protections for migratory birds, The Hill (Feb. 3, 2020), https://thehill.com/changing-america/sustainability/environment/481200-the-trump-administration-looks-to-reduce.

42 Id.

43 Id.