June 23, 2014
U.S.

Eagle-lovers say US kowtowed to industry

By ELIZABETH WARMERDAM | Courthouse News Service | June 23, 2014 | www.courthousenews.com

Bird lovers sued the federal government, challenging a new regulation that extends from 5 to 30 years the length of permits that allow wind energy companies to kill or injure bald and golden eagles without prosecution.

The American Bird Conservancy sued the Department of the Interior and the U.S. Fish and Wildlife Service in Federal Court.

The Bald and Golden Eagle Protection Act prohibits the killing, injuring or disturbing of eagles – incidentally or intentionally – and provides for civil and possibly criminal penalties for it.

The Act allows the Fish and Wildlife Service to issue permits to authorize the “take” – or killing or disturbance – of eagles if it “is compatible with the preservation” of eagles, the lawsuit states.

In 2009, Fish and Wildlife adopted a rule setting the maximum duration for each permit to take eagles at 5 years. Fish and Wildlife said at the time that this limit was set “because factors may change over a longer time such that a take authorized much earlier would later be incompatible with the preservation of the bald eagle or golden eagle. Accordingly, we believe that five years is a long enough period within which a project proponent can identify when the proposed activity will result in take.”

But in December 2013, the defendants extended the take period by 25 years, to allow companies to obtain 30-year permits to legally take eagles.

The rule was expanded in response to the wind power industry’s desire to expand into areas occupied by eagles, according to the lawsuit.

“Eagles are among our nation’s most iconic and cherished birds. They do not have to be sacrificed for the next 30 years for the sake of unconstrained wind energy,” Michael Hutchins, national coordinator of the American Bird Conservancy’s Bird Smart Wind Energy Program, said in a statement. “Giving wind companies a 30-year pass to kill bald and golden eagles without knowing how it might affect their populations is a reckless and irresponsible gamble that millions of Americans are unwilling to take.”

The Conservancy says in the lawsuit that “the rule was adopted in flagrant violation of the National Environmental Policy Act because the Service did not prepare any document analyzing the environmental impacts of the rule change, as required by NEPA and its implementing regulations.”

The rule also violates the Bald and Golden Eagle Protection Act by subverting the basic eagle protection purposes of the Act and eliminating crucial safeguards for eagle populations without any adequate explanation, according to the lawsuit.

“In the government’s rush to expand wind energy, shortcuts were taken in implementing this rule that should not have been allowed,” Hutchins said. “We understand that some bird mortality is inevitable. However, in this case, long-term, cumulative impacts to eagle populations were not properly assessed, and the 30-year take permit rule was adopted in the absence of the required NEPA analysis concerning impacts on eagle populations or any species that share the eagles’ range.”

American Bird Conservancy President George Fenwick said in a statement that the group filed the lawsuit “as a last resort and we hope it will lead to an approach that better balances the compelling national interests in eagle conservation with the expansion of wind power.”

The Conservancy is represented by Caitlin Zittkowski with Meyer Glitzenstein & Crystal in Washington, D.C.

It seeks declaratory judgment that the 30-year eagle take rule violates NEPA, the Bald and Golden Eagle Protection Act and the Administrative Procedure Act, and wants the rule set aside.