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Bird Fatalities

Nossaman LLP

Group Seeks Permitting Requirement for Bird Deaths at Commercial Buildings

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On September 4, 2024, the Center for Biological Diversity, along with more than 20 other groups, (collectively, CBD) delivered a petition (Petition) to the U.S. Fish and Wildlife Service (Service) in which CBD requested the...more

Nossaman LLP

New Jersey Federal Court Dismisses Challenge to Incidental Take Authorizations for Offshore Wind Projects

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On February 29, 2024, the federal District Court for the District of New Jersey dismissed a challenge to eleven incidental take authorizations (ITAs) issued for offshore wind projects off the coasts of New York and New Jersey...more

Troutman Pepper

Changes to Eagle Take Permitting Finalized by Fish and Wildlife Service

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Effective April 12, a new eagle take permitting regime will be in place. The eagle take permitting scheme has been criticized because of its overly conservative and burdensome requirements. These concerns culminated in a...more

K&L Gates LLP

Crying Fowl: The Biden Administration Set to Unwind Trump MBTA Rule

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On 29 September 2021, the U.S. Department of Interior (Interior) announced a series of actions to unwind a Trump-era rule in an effort to “to ensure that the Migratory Bird Treaty Act (MBTA) conserves birds today and into the...more

K&L Gates LLP

To Kill a Mockingbird: Federal Court invalidates Department of Interior’s MBTA Opinion Letter

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In her opening statement to an August 11 opinion, United States District Court Judge Valerie Caproni writes: “It is not only a sin to kill a mockingbird, it is also a crime.” Judge Caproni’s literary reference is the...more

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Migratory Bird Treaty Act: U.S. Fish and Wildlife Service Proposal Addressing Definition of "Take"

The United States Fish and Wildlife Service (“Service”) announced the proposal of a rule that would define a key issue regarding the scope of the Migratory Bird Treaty Act (“MBTA”). The proposed rule is focused on the MBTA...more

White & Case LLP

Offshore wind projects: Assessing the environmental impact: United Kindgdom

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A global leader in offshore wind power capacity, the UK has seen rapid expansion in the sector. Government policy and strong investor interest have resulted in robust growth in the development of offshore wind farms in the...more

White & Case LLP

Offshore wind projects: Assessing the environmental impact: Mexico

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With no offshore precedents, project proponents may find complexity, inconsistency and opportunity. In Latin America, Mexico has been a leader in the development of onshore wind energy plants. However, no offshore projects...more

White & Case LLP

Offshore wind projects: Assessing the environmental impact: Japan

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Despite strong government support and growing capacity, a lengthy approval process may slow progress. In November 2018, the National Diet of Japan enacted the Act of Promoting Utilization of Sea Areas in Development of Power...more

White & Case LLP

Offshore wind projects: Assessing the environmental impact: Germany

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A complex and sophisticated planning and approval process does not prevent opponents from raising environmental challenges—even after project approvals are awarded. The German federal government plans to further expand...more

White & Case LLP

Offshore wind projects: Assessing the environmental impact: Australia

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Offshore wind projects face challenges that are not addressed by the regulatory system established for onshore projects. The Australian government's mandatory renewable energy target (MRET) supports investment in renewable...more

Locke Lord LLP

USFWS Guidance Implementing Solicitor’s M-Opinion Finally Grounds the Migratory Bird Treaty Act

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On December 22, 2017 the U.S. Department of the Interior’s (“DOI”) Office of the Solicitor issued Memorandum M-370501 (the “M-Opinion”) interpreting the take prohibition of the Migratory Bird Treaty Act2 (“MBTA”) to apply...more

Allen Matkins

Renewable Energy Update - August 2016

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Renewable Energy Focus - Tesla acquires sister firm SolarCity for $2.6 billion - VentureBeat - Aug 1 - SolarCity Corp agreed to be acquired by sister company Tesla Motors Inc. in a deal worth $200 million...more

Nossaman LLP

Circuit Courts Tackle Question of Agency Liability under the MBTA for Permitting of Wind Energy Facilities

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On June 7, 2016, the U.S. Court of Appeals for the Ninth Circuit rejected plaintiffs’ claim, among others, that the U.S. Bureau of Land Management’s (BLM) violated the Migratory Bird Treaty Act (MBTA) by granting a...more

Davis Wright Tremaine LLP

Fish and Wildlife Service Supports Renewable Developers and Proposes Revised Eagle Incidental Take Permit Reviving 30-Year...

On May 4, 2016, the United States Fish and Wildlife Service (FWS) released a draft rule and Programmatic Environmental Impact Statement (PEIS) analyzing the impact of the proposed rule on eagles, and extending the duration of...more

BakerHostetler

Migratory Bird Treaty Act: Question Of Unintentional “Take” Primed For Potential Fifth Circuit En Banc Or Supreme Court Review

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Recently, industry won a major legal victory regarding liability—or lack thereof—for unintentional and indirect bird deaths under the Migratory Bird Treaty Act (MBTA). Unfortunately, that victory could be short lived,...more

Baker Donelson

Fifth Circuit Reverses Citgo Convictions Under Clean Air Act and Migratory Bird Treaty Act

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The U.S. Court of Appeals for the Fifth Circuit, in United States v. CITGO Petroleum Corp., No. 14-40128 (5th Cir. September 4, 2015), reversed the district court’s convictions of Citgo Petroleum Corp. (Citgo) for alleged...more

Gray Reed

Citgo Prevails Over EPA at the Fifth Circuit

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USA v. Citgo Petroleum highlights the excruciating degree of detail in federal regulations and the gymnastics the EPA will employ justify a prosecution. The Fifth Circuit has reversed Citgo Petroleum’s conviction for...more

Davis Wright Tremaine LLP

Corporate Wrongdoing: More Civil and Criminal Liability for Individuals?

The US Department of Justice has issued a memorandum to all of its prosecuting Divisions, directing changes to the principles applied by DOJ in prosecuting civilly or criminally individuals who engage in corporate misconduct....more

Saul Ewing Arnstein & Lehr LLP

Liability for Unintentional Bird Deaths Still Up in the Air

The recent Fifth Circuit Court of Appeals decision that unintentional bird deaths under the Migratory Bird Treaty Act (“MBTA”) are not “takes” under the MBTA and therefore not subject to criminal liability, adds fodder to the...more

K&L Gates LLP

Where You Operate Matters: the Fifth Circuit Widens the Split on MBTA Liability

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Last week the Fifth Circuit issued a ruling that reduces uncertainty regarding criminal liability for taking migratory birds. In particular, the ruling alleviates potential liability for facilities where interactions with...more

Perkins Coie

Birds of a Feather: The 5th Circuit Joins the 8th and 9th Circuits’ Narrow View of the MBTA’s Take Prohibition

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On September 4, 2015, the U.S. Court of Appeals for the Fifth Circuit held in United States v. CITGO Petroleum Co. that the Migratory Bird Treaty Act’s take prohibition does not include the unintentional take of migratory...more

Nossaman LLP

Fifth Circuit Spurns Second and Tenth Circuits, Sides with Eighth and Ninth Circuits on Interpretation of MBTA “Take” Prohibition

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Under the Migratory Bird Treaty Act (MBTA), it is unlawful to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird” protected by the Act. 16 U.S.C. 703(a) & 704(a). In a recent...more

Davis Wright Tremaine LLP

Migratory Bird Treaty Act Narrowly Interpreted: the Fifth Circuit Joins the Eighth and Ninth Circuits

The Fifth Circuit Court of Appeals reversed a district court decision holding CITGO liable for three misdemeanors under the Migratory Bird Treaty Act (MBTA) for bird deaths (the opinion lists 35 birds, including “twenty...more

Perkins Coie

U.S. Fish And Wildlife Service Imposes First-Ever Criminal Penalties For Bird Deaths Caused By Wind Projects

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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....more

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