Lawsuit threatened over protections for wind farms that kill birds 

A national bird conservation group has signaled its intent to sue the federal government over new rules that give legal immunity to wind farms that unintentionally kill protected bald and golden eagles.

The American Bird Conservancy notified the U.S. Department of Interior last month that it will take legal action in response to the new rules that went into effect in January. They allow wind farms to obtain voluntary 30-year “take” permits, which protect them against prosecution for accidental eagle deaths. Previously, wind companies had been allowed to seek five-year permits.

The wind industry has praised the change for offering much needed, long-term certainty on what had been a legal gray area, while some conservation groups have called the permits a license to kill. Ultimately, the legal fight might not have great consequences for South Dakota, where there’s little evidence indicating the state’s wind farms are causing eagle fatalities.

South Dakota Public Utilities Commission Chairman Gary Hanson said while high numbers of reported golden eagle deaths are reported in wind-farm accidents in California and Montana, “there really haven’t been many reported at all in South Dakota. I don’t know if there will be much effect here.”

Joe Sullivan, regional policy manager for Wind on the Wires, a wind industry advocacy group, said overall that about 2 percent of golden eagle mortality is attributed to wind farms. Echoing Hanson, he also said South Dakota’s wind farms are not in areas commonly used by golden and bald eagles.

Paul Bachman, executive director of the South Dakota Wind Energy Association, said the longer permits reflect the reality of financing wind projects.

“It’s almost necessary,” he said. “No bank is going to put up financing unless you have the ability to control your costs. You need to know what your costs are going to be throughout the lifetime of a project.”

Other protections

In an announcement of the regulatory change in the Federal Register in April 2013, U.S. Fish and Widlife proposed to safeguard eagles despite issuing 30-year permits by forcing energy companies to commit up front to taking steps necessary to protect the birds.

“We intend to incorporate into the terms and conditions of the permit a commitment from the applicant to implement additional specified mitigation measures that would be triggered if new scientific information demonstrates that the additional mitigation measures are necessary for the preservation of eagles,” the U.S. Fish & Wildlife Service wrote. “These additional specified mitigation measures could be described in detail in the permit so as to reduce uncertainty with respect to costs.”

Good luck with that, said Michael Hutchins. He’s the national coordinator of ABC’s Bird Smart Wind Energy Campaign.

“The methods to mitigate the impact of wind turbines on birds and bats are highly untested,” he said. Of the permit change, he said: “Basically, this is a big experiment with our public resources in the balance.”

ABC has other concerns. Because wind-energy companies self-report bird fatalities, the veracity of those numbers is difficult to verify, and U.S. Fish and Wildlife maintains the information as proprietary. Such lack of transparency makes it difficult to get a true fix on bird and bat deaths caused by wind-energy projects, Hutchins said.

“Birds and bats are a public trust resource,” he said. “he public has a right to know how many are being killed. We can’t find out. Nobody will tell us.”

Estimates range as high as 880,000, Hutchins said. The number of deaths related to wind farms might seem insignificant when compared with U.S. Fish and Wildlife estimates of other sources of bird mortality. Collisions with buildings might kill 97 million to 976 million birds annually, and collisions with vehicles 60 million, according to the federal agency. As many as 72 million birds might die of pesticide and other poisoning annually, and cats are fierce predators of songbirds, killing an estimated 39 million birds annually in Wisconsin alone, according to one study.

Hutchins counters that number of birds killed by wind farms “is not trivial,” especially in light of all the other dangers birds face. “The impacts are cumulative. Altogether, they are really hammering the native bird populations,” he said.

ABC strongly supports wind energy, Hutchins said. But it must be adequately regulated and fit within a larger philosophy of reducing the world’s dependence on petroleum, coal and natural gas.

“Wind and solar both can be quite destructive if they’re poorly sited and poorly managed,” he said. Such projects need to stay away from critical bird and bat habitat. In addition, renewable energy development must be accompanied by a corresponding reduction in fossil fuel plants. “It’s not happening,” Hutchins said.

A robust application of the federal Endangered Species Act and the Bald and Golden Eagle Protection Act ideally should be part of a series of comprehensive federal and state guidelines for permitting wind-energy development, Hutchins said.

“Now, it’s a free-for-all out there,” he said. “There’s stuff going up everywhere.”

Hanson said the PUC in South Dakota takes wind-energy permitting decisions seriously, and it doesn’t need a heavy overlay of federal regulations. He does, however, argue that 30-year permits should be reviewed at five-year intervals.

“Thirty years is too long to extend a permit without having a review,” Hanson said.

He is not troubled by the lack of a requirement for independent reporting of bird and bat deaths.

“It’s not something someone could hide very long unless they are out there picking up dead birds. … I don’t think we need a government bureaucracy checking on that.”

Whooping cranes

But while eagles might not be in great jeopardy from wind power development in South Dakota, Hanson is concerned about endangered whooping cranes.

“There are fewer than 500 whooping cranes. The flyway for whooping cranes is right down the corridor of the best locations for wind turbines. I am very concerned with the whooping crane population,” he said.

While the cranes tend to be high flyers when they migrate, they could be at risk from wind turbines during takeoffs and landings into wind farms at dawn, dusk and at night. Hanson said if the federal government were to require wind turbines to shut down during whooping crane migrations it would make “great sense.”

Again, federal intervention might be unnecessary, claims a wind industry advocate. Wind on the Wires’ Sullivan said he knows of one planned South Dakota wind-power development abandoned because it would have conflicted with whooping cranes. This is typical of developers’ reluctance to court environmental problems when siting new wind farms, he said.

South Dakota has enough wind to potentially generate 900,000 megawatts of wind energy.

“When you’ve got that much developable wind, why waste time on a 200-megawatt chunk that has got all those problems associated with it?” Sullivan said. “There is so much low-hanging fruit out there.”

Ironically, might the ABC lawsuit make South Dakota more attractive to wind-energy developers?

Competition is fierce among states to site new wind farms, and South Dakota’s tax structure puts it at a disadvantage, Bachman said. But if the ABC lawsuit forces the federal government to more aggressively protect eagles from wind turbines, would developers look more favorably on South Dakota where eagle mortality from wind farms so far doesn’t seem to be a big problem?

“That’s an interesting question,” Bachman said. “I’m afraid I don’t know the answer. It seems logical, but there’s no way to predict that.”

Migratory bird mortality

Many human-caused threats affect bird populations

573,000

number of birds killed

each year by wind turbines

2 million

killed by oil and wastewater pits

4 million

killed by communication towers

60 million

killed by cars

72 million

killed by pesticides

97 million

killed by windows

174 million

killed by power lines

39 million

killed by domestic cats,

in Wisconsin alone

Sources: Associated Press,

U.S. Fish and Wildlife Service