Obama admin sweats legal response as turbines kill birds 

MOUNT STORM, W.Va. – Turn the final bend on Route 42 as it snakes up Mount Storm and a towering turbine appears, its blades swooshing in the winter gusts.

Dozens more of these giants crown this remote mountain ridge 150 miles west of Washington, D.C. Dominion and Shell WindEnergy’s NedPower Mount Storm facility – 132 turbines in all – generates up to 264 megawatts, enough to power around 66,000 homes.

But there’s a problem: The whirring blades kill birds. A lot of them.

The turbines, positioned just so to harness the wind, are dead in the path of hawks, yellow-billed cuckoos, wood thrushes and other migrating birds. On one night last September, Mount Storm turbines killed 59 birds when a light was left on in one of the towers.

Such mass bird kills represent a dilemma for the Obama administration. Can it promote renewable energy development and still enforce laws that protect wildlife?

In theory, wind farm operators could face prosecution under the Migratory Bird Treaty Act for every migratory bird their turbines kill.

But nobody’s been prosecuted. And the administration has sent signals indicating that companies won’t face legal trouble, though it has fallen short of issuing any cast-iron guarantees.

Further muddying the waters, legal experts say it is not clear under what circumstances a wind energy company could face liability under the bird-protection law.

The status quo provides ammunition for foes of new wind-energy projects.

Take Donna Cook, a local cattle farmer and retired federal government employee who lives near Mount Storm and is a vocal critic of the turbines.

On a recent gloomy day at a gasoline station near the top of the ridge, she sat in her red pickup truck to keep warm as snow swirled around the turbines.

For her, the lack of enforcement of the migratory-bird law by the U.S. Fish and Wildlife Service, which could alert DOJ to potential prosecutions, is a damning indictment of the government’s role as cheerleader for the wind energy industry.

“It’s very upsetting to me,” she said. “If you can’t get the Fish and Wildlife Service to support you, it’s never, ever, ever going to be enforced.”

Legal uncertainty

Jim McElfish has first-hand knowledge of the legal quagmire that has developed around the migratory-bird law.

A senior attorney at the Environmental Law Institute in Washington, McElfish said a lot of the confusion arises from language in the Migratory Bird Treat Act and how it has been applied in the past.

Crucially, the law does not require intent.

“You don’t have to stand out in your field and shoot migratory birds to be in violation,” he said.

But it is also not clear what kind of incidental kills the government could successfully prosecute.

In fact, a recent federal court decision suggested that companies operating in compliance with all relevant regulations should not be prosecuted.

In a ruling issued Jan. 17, Judge Daniel Hoyland of the U.S. District Court for the District of North Dakota, dismissed charges against three oil companies accused of killing migratory birds that were found dead near their facilities.

“This court believes that it is highly unlikely that Congress ever intended to impose criminal liability on the acts or omissions of persons involved in lawful commercial activity which may indirectly cause the death of birds protected under the Migratory Bird Treaty Act,” Hoyland wrote.

The statute was not written to “criminalize lawful commercial activity conducted in the oil fields of North Dakota,” he added.

The question is whether courts would reach the same conclusion about wind farms.

McElfish has a hunch the Justice Department – which would have the final say on whether to pursue a prosecution – might be looking for a suitable test case that would help the government establish court precedent that supports a broad reading of the migratory bird law. A DOJ spokesman declined to comment on the issue.

The current situation is not perfect for either bird advocates or the wind energy industry.

Wildlife groups point to one Fish and Wildlife Service study speculating that as many as 440,000 birds are killed by wind turbines every year.

The wind industry – spearheaded by the American Wind Energy Association (AWEA) – says the figure is much lower.

Wind energy companies are not secure because they have received no pledge that they will never be prosecuted. The potential liability under the migratory bird law is also an issue that must be presented to potential wind project investors.

Meanwhile, high-profile bird kills continue to drive complaints made by organizations like the American Bird Conservancy (ABC) and provides fuel to residents who mount opposition to proposed wind projects in their neighborhoods.

In West Virginia alone, the killings at Mount Storm were overshadowed by another incident a month later when an estimated 484 birds were killed at the newly constructed Laurel Mountain facility, operated by AES Corp.

Keen to publicize the issue, conservation activists are quick to distribute graphic photographs that they say show some of the birds that have been killed by turbines.

The problem will likely increase, as the wind industry grows. According to ABC, there were an estimated 30,000 turbines in 2009. By the end of this year, that figure is expected to have more than doubled.

Voluntary guidelines

To date, the government, with the backing of industry, has restricted its efforts to working on guidelines for wind farm developers to help minimize the impact on birds and other wildlife (Greenwire, May 24, 2011).

AWEA describes the guidelines as “the highest standard for wildlife protection voluntarily undertaken by any industry” and points out that, in general, wind energy is known for having a relatively low impact on the environment when such issues as air pollution and greenhouse gas emissions are taken into account. The group declined to comment on the specific issue of liability under the migratory bird law.

Last month, ABC made its views clear when it filed a petition with the Interior Department asking the government to consider a permitting scheme similar to the one required under the Endangered Species Act (Greenwire, Dec. 14, 2011).

Kelly Fuller, ABC’s wind campaign coordinator, is adamant that there must be something more than voluntary guidelines.

Incidents like those in West Virginia “simply beg for law enforcement and for mandatory federal standards to prevent such unnecessary deaths in the future,” she said. “Otherwise, if there are no consequences, we can expert more legally protected birds will be killed when their deaths could have been easily and inexpensively prevented.”

The Fish and Wildlife Service has not yet responded to ABC’s petition, while AWEA has not directly commented on it.

The service has previously said that it is “following the same enforcement model with respect to the wind industry that it has followed in the past with other industries whose operations kill protected birds.”

Under that approach, bird kills have been documented and wind farm operators have been made aware of their “stewardship responsibilities,” the service said. An agency spokeswoman declined to comment further.

At a Washington seminar sponsored by the law institute late last year on the impact of turbine farms on wildlife, the industry reaction to the permit proposal – offered by Eric Glitzenstein, an attorney at Meyer Glitzenstein & Crystal who represents ABC – was lukewarm.

David J. van Hoogstraten, director of policy and regulatory affairs at BP Wind Energy, North America, grudgingly said: “I suppose it could be done.”

Earlier in the discussion, he said his favored approach was to amend the migratory bird law.

“There are an awful lot of migratory birds, he said. “A permitting system would bog us down.”

‘Flagrant violation’

At the Mount Storm facility, 32 of the bird deaths on Sept. 24 were attributed to Turbine 32, which is at the project’s north end.

A report compiled by West Inc., the facility’s environmental consultant, concluded that the cause was likely “due to lights in the turbine … inadvertently being left on.”

The skylights at the top of the turbine “may have allowed enough light to escape to attract the birds under the foggy conditions,” according to the report, a copy of which was obtained by Greenwire.

In a statement, Dominion spokesman C. Ryan Frazer said NedPower “advised the U.S. Fish and Wildlife services of our conclusion that the incident was a one-time unexpected occurrence.”

The company “is committed to operating responsibly and reducing the impact of our operations on wildlife,” he added.

To Glitzenstein, what happened at Mount Storm is exactly the kind of incident that the Justice Department should be looking into as a potential prosecution.

“Any killing of a migratory bird is a violation of the act,” he said. “We have what seems to be a flagrant violation of the act. The question is why not do a prosecution?”

The Justice Department and the the Fish and Wildlife Service declined to comment on whether the incident at Mount Storm was under investigation.

For Donna Cook, driving gingerly along a snow-coated road while giving a visitor a brief tour of the Mount Storm site, the lack of attention given to the impact on birds just sums up a desire from government and industry – not to mention local landowners who benefit financially – to push wind energy projects, whatever the cost.

As the snow eased and a trace of sun could be glimpsed through the clouds, she shook her head wistfully.

“I try not to think about it anymore,” she said.

Click here to read the North Dakota court ruling.

Click here to read ABC’s petition calling for a permitting process.

Click here to read FWS draft wind energy guidelines.