Wind, birds and bats: recent legal migrations 

Wind energy has rapidly migrated from a small to significant source of energy generation, resulting in increased attention to and regulation of wind energy’s impact on birds and bats. This article provides a high-level overview of recent developments and items to monitor in terms of wildlife protection.

Enforcement

• To date, the federal government has entered into only two plea agreements (with PacifiCorp in December 2014 and Duke Energy in November 2013) with respect to alleged Bald and Golden Eagle Protection Act (BGEPA) and Migratory Bird Treaty Act (MBTA) violations at wind facilities.

• The U.S. Fish and Wildlife Service (FWS) is currently investigating takes by at least 15 wind facilities, several of which have been referred to the Department of Justice for possible prosecution.

• One developer has voluntarily entered into a settlement agreement with the FWS to preempt enforcement of takes at several projects.

• Altamont Winds Inc. notified the FWS in October that it would voluntarily shut down its wind facility in the Altamont Pass in California, stating that the number of avian impacts was the primary reason for the shutdown. The existing turbines had been erected in the 1980s and had resulted in a large number of avian fatalities. Altamont has submitted a permit application to construct 33 new turbines that are more technologically advanced and safer for birds in place of the older turbines.

Litigation

• On Sept. 9, the U.S. Court of Appeals for the 5th Circuit overturned a conviction against a petroleum company for the incidental take of migratory birds, thereby deepening the circuit split over how to define “take” under the MBTA.

• In January, a suit was filed by the Garden Peninsula Foundation claiming that the FWS failed to require a National Environmental Policy Act (NEPA) review and take permits under the Endangered Species Act (ESA) and BGEPA for a Michigan wind project. The FWS filed a motion to dismiss, asserting that projects on private land fall outside of its regulatory authority. The outcome of this case could have a material impact on future wind development on private land.

Incidental Take Permits (ITPs)

• In January, a bill was introduced into the House to exempt criminal liability for incidental takes under the MBTA, require 30-year ITPs under the BGEPA and set a one-year deadline for the FWS to issue decisions on the BGEPA take permit applications.

• In March, the Merricourt Wind Farm in North Dakota applied for an ESA ITP for piping plovers and one whooping crane. If approved, it will be the first ITP ever issued to a wind project for the take of a whooping crane.

• In May, the FWS issued a notice of intent to consider authorizing ITPs under the MBTA. Given the lengthy regulatory review process, MBTA ITPs will not be available in the short term, and in the meantime, taking migratory birds remains a criminal offense.

• On Aug. 11, the U.S. District Court for the Northern District of California overturned an FWS rule authorizing 30-year BGEPA ITPs for failure to comply with NEPA. The FWS already commenced a NEPA review and aims to finalize revised regulations by 2017. This decision does not prohibit further issuance of five-year BGEPA ITPs. Only one five-year ITP and – no 30-year ITPs – has been issued to date, although several applications are pending. The FWS appealed this decision to the U.S. Court of Appeals for the 9th Circuit on Oct. 8.

Multistate habitat conservation plans

The FWS is preparing multistate and multi-species habitat conservation plans (HCPs) to address certain incidental takes by wind projects. HCPs currently undergoing NEPA reviews include the following:

• The Midwest Wind Multi-Species HCP, covering take of four bat species, a bald eagle, an interior least tern, a Kirkland’s warbler and a piping plover across eight Midwestern states;

• The Great Plains Wind Energy HCP, covering take of the whooping crane, interior least tern, piping plover and lesser prairie chicken across the Great Plains; and

• The Desert Renewable Energy Conservation Plan. In November, the U.S. Department of the Interior (DOI) and the California Natural Resources Agency released the final environmental impact statement for its Phase 1 NEPA review. The plan seeks to expedite the permitting process for renewable energy development and support the conservation of 10 million acres of federal public lands in the California desert. A 30-day comment period on the plan began on Nov. 13, after which the DOI will issue a record of decision to complete the NEPA review.

ESA listings

• In April, the FWS listed the northern long eared bat (NLEB) as threatened under ESA due to white-nose syndrome (WNS) and issued an interim 4(d) rule exempting certain activities outside the WNS buffer zone, including wind energy, from incidental take. Takes by wind projects within the WNS buffer zone are not exempt. The Center of Biological Diversity filed a lawsuit asking the D.C. Circuit Court to invalidate the rule pending a full NEPA review. In response, a bill to prevent listing NLEBs as endangered for another year has been introduced in the House.

• On Sept. 22, the FWS announced that the greater sage-grouse does not warrant protection under ESA due to conservation efforts by the government, private industry and private landowners. Concurrent with the listing decision, the FWS announced the finalization of 98 land-use plans intended to conserve the greater sage-grouse habitat on various public lands across 10 states.

• On Sept. 1, the U.S. District Court for the Western District of Texas vacated the FWS’ listing of the lesser prairie chicken as threatened under the ESA finding that the FWS’ decision was arbitrary and capricious. This is the first time a court has vacated an ESA listing on the grounds that the FWS did not properly consider conservation efforts. An appeal has not been filed by the FWS.

Matthew H. Ahrens is a partner and Meghan Gabriel is an associate at Milbank, Tweed, Hadley & McCloy.