The U.S. Department of Justice announced that ESI Energy LLC (ESI), a wholly owned subsidiary of Nextera Energy Resources LLC, pleaded guilty to violating the Migratory Bird Treaty Act (MBTA) and acknowledged at least 150 deaths of bald and golden eagles at 50 of ESI’s 154 wind power facilities.
In what is believed to be by far the largest MBTA penalty imposed on a wind power project, ESI entered into a plea agreement that requires it to pay $8 million in fines and restitution, and to implement up to $27 million worth of measures intended to minimize future eagle deaths. Each future eagle death will cost ESI $29,623.
The DOJ’s enforcement action can be tied to the high number of foreseeable eagle deaths at numerous projects and ESI’s apparent blanket disregard for recommendations by the U.S. Fish and Wildlife Service. In addition, ESI did not seek or obtain any eagle take permits under the Bald and Golden Eagle Protection Act.
Although the eagle deaths occurred at dozens of ESI wind power facilities in several western states, the actual charges to which ESI pleaded guilty stemmed from only three facilities, two in Wyoming and one in New Mexico, at which a total of 16 golden eagle fatalities were recorded. ESI acknowledged that its projects in California killed 92 eagles.
That the California fatalities did not result in MBTA counts to which ESI pleaded guilty is likely tied to a split in the U.S. Circuit Courts of Appeal on whether the MBTA criminalizes take that is incidental to, rather than the purpose of, otherwise lawful activity (e.g., the operation of a wind power facility).
The Tenth Circuit, which includes Wyoming and New Mexico, has held that the MBTA does criminalize incidental take. See United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010) (violation of MBTA for taking migratory birds is strict liability crime with no intent requirement). The Ninth Circuit, in which California is located, has interpreted the MBTA to only criminalize intentional take. See City of Sausalito v. O'Neill, 386 F.3d 1186, 1225 (9th Cir. 2004) (“definition of an unlawful ‘taking’ under the MBTA describes physical conduct of the sort engaged in by hunters and poachers”), quoting Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 303 (9th Cir. 1992); see also United States v. CITGO Petroleum Corp., 801 F.3d 477, 488–89 (5th Cir. 2015) (recognizing circuit split and holding that take under MBTA “is limited to deliberate acts done directly and intentionally to migratory birds”).
