The first criminal case ever prosecuted under the Migratory Bird Treaty Act (MBTA) against a wind energy company for bird deaths resulted recently in Duke Energy Renewables (Duke Energy) reaching a settlement with the U.S. Department of Justice (DOJ). The U.S. Fish and Wildlife Service (FWS) and DOJ had alleged misdemeanor violations of the MBTA against the company for more than 163 migratory bird deaths, including 14 golden eagles, within the past three years at its Top of the World and Campbell Hill wind power projects near Casper, Wyoming.
The November 22, 2013 settlement agreement requires that Duke Energy pay $1 million in restitution and implement a comprehensive Migratory Bird Compliance Plan to minimize and avoid avian mortalities at the Top of the World and Campbell Hill projects, as well as Duke Energy’s Silver Sage and Happy Jack projects. The plan consists of the following measures:
installation of new radar technology to assist in the detection of airborne eagles at or near the project sites (the installation of existing radar technologies has already exceeded $750,000);
establishing a curtailment program to curtail turbine operation when eagles are spotted or expected near the project sites;
development of a “life of project” Bird and Bat Conservation Strategy for all four wind projects operated by Duke Energy;
applying for Programmatic Eagle Take Permits and developing Eagle Conservation Plans;
voluntary reporting of all eagle and migratory bird deaths to FWS; and
remaining on probation for the next five years, including regularly meeting with FWS and determining potential additional adaptive management measures to reduce avian mortality.
Duke Energy’s Migratory Bird Compliance Plan will cost the company roughly $600,000 per year, not accounting for costs associated with any compensatory mitigation that may be needed or the development and implementation of the Bird and Bat Conservation Strategies for the four projects required under the plan.
Migratory Bird Treaty Act and FWS Guidelines
FWS has primary responsibility for enforcing laws protecting migratory and endangered birds and bats, including the MBTA. The MBTA is unusual in its combination of harsh penalties, as a strict liability criminal law, with broad applicability. The Act protects hundreds of species of migratory birds, including very common species, such as pigeons and sparrows, from a wide range of activities, making it illegal to “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess… any migratory bird… or any part, nest, or egg of any such bird.” 16 U.S.C. §§ 703–712. As a result, the FWS has been careful to use its enforcement discretion to avoid overbroad prosecution of the wide range of activities that could otherwise be determined as unlawful, and has generally chosen to focus on the most egregious acts. The MBTA has nonetheless been applied to a number of scenarios ranging from the hunting of migratory birds to the death or injury of migratory birds resulting from otherwise lawful commercial activities, such as the operation of power plants and transmission lines, oil and gas facilities, chemical manufacturing, timber harvesting, and road construction, among others.
FWS has issued “Land-Based Wind Energy Guidelines,” which seek to minimize impacts from the development of “utility-scale” onshore wind energy projects on wildlife and birds. These guidelines help provide clarity on the enforcement of the MBTA. The guidelines call for developers to use a tiered approach for evaluating the impacts of a project. There are five tiers, with the first through third tiers addressing pre-construction monitoring and the fourth through fifth tiers addressing post-construction monitoring. At each tier, the guidelines identify potential issues and formulate questions to guide the decision process. Because this guidance is voluntary, a project developer makes the ultimate decision to proceed to the next tier, but the guidelines encourage an open dialogue with FWS regarding compliance. The potential outcome of each tier’s review ranges from project abandonment, if the project presents risks to wildlife and birds that cannot be mitigated, to project modification or mitigation. These guidelines became final in March 2012.
The prosecution of Duke Energy reinforces the importance of developing voluntary compliance mechanisms to reduce bird mortality and raises the possibility that more enforcement actions could be on the horizon. FWS is currently investigating 18 cases of bird mortality by wind-power facilities and six of these cases have been referred to DOJ for potential prosecution.
Although not explicit in the plea agreement, it appears the FWS and DOJ considered compliance with the voluntary Land-Based Wind Energy Guidelines when evaluating the company’s actions. The guidelines are technically “voluntary,” and make clear that compliance does not necessarily mean there is no potential for prosecution, but the strong implication is that good faith measures to comply with the guidelines will result in the exercise of discretion not to pursue enforcement actions. The settlement in fact notes that according to the guidelines, FWS’s Office of Enforcement “focuses its resources on investigating and prosecuting those who take migratory birds without identifying and implementing reasonable and effective measures to avoid take, exercising enforcement and prosecutorial discretion regarding individuals and companies who make good-faith efforts to avoid the take of migratory birds.” As a result, renewable energy developers should take heed and take proactive steps to identify and implement measures to comply with the guidelines and avoid avian take.