The push for clean energy notwithstanding, no silver bullet can cure the challenges that our continued use of carbon engenders. Every form of energy production, green or black, clean or dirty, presents downsides. Siting an energy facility—whether clean energy, hydro, natural gas, coal or nuclear—inherently imposes some form of environmental harm. For renewables, one of the biggest challenges continues to be impacts on birds.

Challenges by environmentalists to new wind and solar projects have continued with mixed results in court. Even some “almost ancient” projects continue to face opposition. The Cape Wind project, sited offshore from Nantucket, has been litigated in multiple forums since 2001. Cape Wind has generally been successful, leading to almost annual headlines that the project is set to go. But opponents have been resourceful and persistent with new venues to yet again delay the project (see “Cape Wind Finally Blows Out” in the March 2015 issue).

On the west coast, the Altamont Pass wind farms were built in the 1970s and early 1980s with limited controversy. But more recently, they have been regularly attacked by both environmentalists, challenging the large number of golden eagles and other raptors the turbines strike down, and by non-energy companies that question the significant penalties they face for a few bird mortalities while the Altamont facilities seem immune to enforcement. Over time, many of the turbines in Altamont have been replaced or re-sited. This year, one operator is shutting down its 828 small turbines and will replace them with 33 larger turbines sited at locations less likely to cause bird mortality but producing equivalent megawatts.

Federal Oversight

The federal government, with mixed results, has attempted to assist developers of solar and wind generation to be better able to develop projects while also protecting migratory birds and eagles (see “Weighing the Environmental Impacts of Wind and Solar” in the July 2016 issue).

The Fish and Wildlife Service (FWS) uses two statutes—the Bald and Golden Eagle Protection Act (Eagle Protection Act) and the Migratory Bird Treaty Act (MBTA)—to support the two major arrows in its enforcement quiver: the threat of enforcement to encourage incorporation of “best practice guidelines” into the siting, design, and operation of facilities; and the implementation of “incidental take” permitting programs, which allow the facility to avoid enforcement actions despite causing a degree of bird mortality in connection with facility operations.

The Eagle Protection Act permitting program could be especially valuable to wind facilities, but the FWS has issued almost no permits since initiating the program in 2009. In 2013, to facilitate financing for wind projects, the FWS extended the permit length from five years to up to 30 years. However, the FWS’s extension of the permit period was successfully challenged in court for the absence of an environmental impact statement (EIS). In response, the FWS has now issued an EIS justifying the extension and re-promulgated its regulations for the program. That is likely to spawn additional litigation and more delay.

Uncertainty and Limited Enforcement

As construed by the FWS, the MBTA is essentially a strict liability criminal statute, imposing misdemeanor liability for deaths of any domestic bird species. Wind operations in particular would seem to be an obvious target for enforcement. However, exercising prosecutorial discretion, the FWS and the Department of Justice brought no actions against renewable facilities until moving against a wind farm in Wyoming in 2014.

The lack of aggressive enforcement has meant that there was little incentive for operators to undertake expensive steps to avoid or limit bird mortality. To increase that incentive, the FWS announced it would begin development of an incidental take program under the MBTA that would provide operators with protection from enforcement, despite some bird mortality, in exchange for the implementation of best practices. It would also create, through mitigation fees, a source of funding for habitat improvements. However, as with the 30-year eagle permit, legal issues will likely derail this program.

The FWS has interpreted the MBTA to cover any migratory bird fatalities. However, in November 2015, the Fifth Circuit held that Congress had not intended to prohibit “incidental take” from otherwise lawful activities. Rather, it addressed only actions, such as hunting, directed at the birds. Language in the decisions of two other courts accords with this ruling.

The Supreme Court will likely resolve the incidental take issue, assuming Congress does not address it earlier. In any event, if courts governing half the country have held that incidental take does not violate the MBTA, there is little impetus for operators in the renewable energy, transmission, oil and gas, and mining fields to join in whatever program FWS ultimately develops.

The absence of clearly defined and consistent rules for permitting programs means less certainty for operators. Adding to that uncertainty is the recent guidance memo from the Department of Justice that requires its attorneys to justify not including prosecution of individuals along with their corporate employers. That may mean that an Eagle Protection Act or MBTA violation could result in more than a financial penalty paid by the corporation.

Nonetheless, these burgeoning renewable technologies should endure. A legislative fix remains unlikely, given current politics, but improvements in siting policies, and the availability funding and the promise that innovation can enable technology to yield “win/win” resolutions of environmental concerns. ■

Gerald George ([email protected]) is a partner in Davis Wright Tremaine LLP’s Energy & Environmental Practice in the firm’s San Francisco office.