A leading wind farm operator has agreed to pay fines and other fees totaling just over $8 million, plus potentially spending millions of additional dollars, because its operations were linked to the deaths of at least 150 eagles over about a decade.
Partly at issue was whether the energy producer should have applied for permits before its operations killed the birds, or if the business should have taken other actions.
The legal case points up the fact that responsible wind farm owners take additional steps to ensure their operations – including wind turbines, which can extend hundreds of feet into the air while also sweeping lower to the ground – do not kill many birds and other wildlife, a conservation expert told the Wyoming Tribune Eagle.
The federal government contends that ESI Energy Inc., which is affiliated with NextEra Energy, had not heeded federal recommendations regarding its wind farm operations in Wyoming’s Carbon and Laramie counties and in New Mexico.
ESI had agreed to plead guilty to killing and wounding eagles in its wind energy operations, violating the Migratory Bird Treaty Act.
It pleaded guilty to three counts of violating the MBTA, “each based on the documented deaths of golden eagles due to blunt force trauma from being struck by a wind turbine blade” at the operations lacking necessary federal permits.
On Tuesday, the company was sentenced in Cheyenne for those violations, the U.S. Department of Justice and the U.S. attorney for Wyoming announced, via a DOJ news release sent by email Wednesday.
ESI faces a fine of $1.86 million, $6.21 million in restitution and a five-year period of probation in which it must adhere to an eagle management plan.
This plan requires up to $27 million in steps “intended to minimize additional eagle deaths and injuries, and payment of compensatory mitigation for future eagle deaths and injuries of $29,623 per bald or golden eagle,” DOJ said. “ESI also must over the next 36 months apply for permits for any unavoidable take of eagles at each of 50 of its facilities where take is documented or, in the case of four facilities not yet operational, predicted.”
The MBTA bars the “taking” of migratory birds without a permit from the U.S. Fish and Wildlife Service. “Taking” includes killing such wildlife.
NextEra disagreed with how the government interpreted the law here, even though it said it signed on to the settlement to “resolve this dispute and focus our attention on continuing to develop, build, and operate emissions-free wind energy centers for a lower carbon America built by good-paying American jobs.”
The company noted that the violations it pleaded guilty to are misdemeanors.
In the company’s legal reasoning, MBTA “does not require a permit to cover unintentional collisions that occur when eagles fly into properly developed wind energy facilities.”
“Unfortunately, the federal government, at odds with many states and a number of federal court decisions, has sought to criminalize unavoidable accidents related to collisions of birds into wind turbines while at the same time failing to address other activities that result in far greater numbers of accidental eagle and other bird mortalities,” the energy firm said.
Its statement was issued by NextEra Energy CEO Rebecca Kujawa.
In a video on its website, NextEra calls itself “the nation’s leader in energy storage” and “the world’s largest generator of wind and solar energy.”
The company would not answer most questions for this story, beyond confirming the location of its operations that were cited by the U.S. Nor would industry groups provide information about steps U.S. companies in general take to avoid inadvertently killing any species of birds.
In Wyoming, NextEra operations mentioned by the DOJ are its Cedar Springs Transmission multi-facility commercial wind power project in Converse County and Roundhouse Renewable Energy facility in Laramie County.
According to NextEra’s website, it has made $729 million in capital investments in Wyoming and it has about 10 employees (or possibly 51, depending on which figure is used) in the state, where it has a 4.6% market share of electricity sold.
The company has a few hundred turbines at those two areas, and their total rated capacity is several hundred megawatts, according to the U.S. Wind Turbine Database, which is partly affiliated with the U.S. Department of the Interior.
At the high end of that power range, that is more electricity than is used in Cheyenne.
Throughout the country, according to the federal database, there are more than 70,000 turbines in 44 states, as well as Guam and Puerto Rico.
The other site involved in the settlement with the government involves ESI’s FPL Energy New Mexico Wind, which DOJ said has wind power facilities in De Baca and Quay counties in that state.
At around the end of December 2020, “two golden eagle carcasses were found near a wind turbine” at this facility, the federal agency said.
Back at the two wind farm sites in Wyoming, the U.S. Fish and Wildlife Service had told ESI that, by building the turbine operations, it ran the risk of killing golden and bald eagles. Nonetheless, the company did not seek any of the take permits from FWS nor did it take cautionary actions, the government said.
In some instances for some of the facilities, the agency had recommended that there not be any such development.
Some wind farms do take precautions so that they avoid killing birds, which can fly into their turbines, according to the government and an expert who spoke with the WTE. In fact, the government said that ESI by not taking these measures got a leg up on rival energy producers that follow the rules.
“ESI and its affiliates received hundreds of millions of dollars in federal tax credits for generating electricity from wind power at facilities that it operated, knowing that multiple eagles would be killed and wounded without legal authorization, and without, in most instances, paying restitution or compensatory mitigation,” the DOJ said.
FWS and other organizations like the conservancy have guidelines that wind farm operators can follow so they avoid killing birds, said the American Bird Conservancy’s Joel Merriman. Such tools help identify areas where wind farm development would risk harming birds and areas where it is OK.
“There are good resources out there to steer wind energy developers toward the right locations,” said Merriman, director of the bird conservancy’s Bird-Smart Wind Energy Campaign. “We can have wind energy without undue impacts to wildlife.”
Although there are a range of estimates researchers have reached over the years, the bird group estimates that more than half a million birds are killed each year in the U.S. due to wind turbines.
Eagles, for animal-developmental, migration and other reasons, are among the more vulnerable bird and raptor species to getting killed by turbines, Merriman said by phone.
“Eagles are particularly vulnerable to collisions with wind turbines,” he said. “A lot of that is due to the fact that they spend a lot of time on the wing and they are essentially distracted fliers. They hunt while they are flying.”
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