First Prosecution Of Wind Company For Killing Birds

Saturday, November 23, 2013

The Department of Justice (DOJ) on Friday announced a settlement on the prosecution of Duke Energy’s wind developments in Wyoming in connection with the deaths of 14 Golden Eagles and 149 other protected birds, amounting to $1 million in fines and mitigation actions. This is the first prosecution of a wind company in connection with bird mortality.

“This is a welcome action by DOJ and one that we have long anticipated,” said Dr. George Fenwick, president of American Bird Conservancy (ABC), one of the nation’s leading bird conservation groups and a longtime advocate for stronger federal management of the wind industry. “Wind energy is not green if it is killing hundreds of thousands of birds. We are pro-wind and pro-alternative energy, but development needs to be Bird Smart. The unfortunate reality is that the flagrant violations of the law seen in this case are widespread.”

“Today’s enforcement action is the first and only time a line in the sand has been drawn by the government,” said Dr. Michael Hutchins, coordinator of ABC’s National Bird Smart Wind Energy Campaign. “The boundaries for the wind industry are voluntary, meaning that companies have been able to pay lip service to bird protection laws and then largely do what they want. Poorly sited wind projects exist or are being planned that clearly ignore the advice of federal and state biologists who have few, if any, means of preventing them from going ahead.”

The charges stem from the discovery of 14 golden eagles and 149 other protected birds, including hawks, blackbirds, larks, wrens and sparrows by the company at its “Campbell Hill” and “Top of the World” wind projects in Converse County between 2009 and 2013.   The two wind projects are comprised of 176 large wind turbines sited on private agricultural land.

ABC has called for the prosecution of wind companies over violations of the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act on numerous occasions, including requests to Congress and officials of both the U.S. Fish and Wildlife Service (FWS) and DOJ.

“All wind projects will kill some birds. It is sadly unavoidable, but some areas are worse than others, and we can predict where many of these will be,” said Dr. Hutchins. “The problem with the Duke Energy wind facility in Wisconsin is very similar to problems that exist elsewhere. Wind farms are being built without adequate plans to mitigate and compensate for bird impacts.”

ABC has developed a risk assessment map to provide general guidance on siting, though it is not a replacement for project-specific environmental assessments. Wind projects in lower-risk areas are likely to be less expensive to mitigate and compensate for through programs such as “habitat banking.”

The Department of Energy in 2010 published a renewable energy plan for the U.S. that called for a 12-fold increase in wind-generating capacity by the year 2030. In 2009, the wind industry was estimated to be killing about 440,000 birds. In 2012, a new estimate by Dr. Shawn Smallwood suggested that it was killing closer to 600,000 birds.

“Killing half a million birds by today’s wind industry is a significant figure, but how many more will be killed when the country has fully built out a program 12 times larger that operates without strong siting and operating guidelines?” asked Dr. Hutchins. “The wind industry should be treated like other for-profit energy industries. We believe it’s necessary to enforce development restrictions on wind, such as avoiding bird migration corridors and places where protected species and sensitive habitats are present.”

In March 2012, the FWS published voluntary operating and siting guidelines for the wind industry, following consultations with a Federal Wind Advisory Committee dominated by supporters of wind energy. Three months earlier, in December 2011, with the help of Meyer Glitzenstein & Crystal (MGC), a Washington, D.C.-based public interest law firm, ABC formally petitioned the FWS to establish a mandatory wind project permitting system—a process that would ensure that wind developments were well sited, operated, and mitigated, with paid permits to cover costs. Were it to be adopted, this system would prevent the most damaging wind developments while allowing ones less harmful to birds to proceed in conjunction with certain mitigations. This followed an ABC campaign that gathered support from more than 150 organizations and 20,000 concerned citizens asking the Department of Interior for mandatory standards, not voluntary guidelines. Included in this group were the Sierra Club, Cornell Lab of Ornithology, American Birding Association, and many state Audubon societies.

ABC’s work on Bird Smart wind is generously supported by the New York-based Leon Levy Foundation.

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