The wind farm industry has been the fastest growing element of the renewables in the US. Despite the political obstacles facing developers, on-shore operations are expanding, and offshore operations are expected to kick off in the next few years along the East Coast. An unwelcome sign of that success may be the increased scrutiny being applied to the industry by environmentalists. The focus of environmentalists has been the impact of industrial wind farms on birds, particularly raptors entitled to special protection under federal law, such as bald and golden eagles.
Local opposition to wind power projects itself is not a novelty. The Cape Wind project, proposed for an area offshore of Nantucket, has been fighting – and in most respects overcoming – well-financed local opposition for well over a decade. But wind power projects have largely flown under the radar of environmentalists, whose natural bent would be to encourage renewable sources. One sign of change was an enforcement action taken by the Department of Justice under the Migratory Bird Treaty Act (MBTA) against Duke Energy in Colorado last November, the first ever against a wind farm operation.
The consent decree entered in that case obligated Duke Energy, among other things, to apply for permits under the Bald and Gold Eagle Protection Act, a statute with less broad coverage than the MBTA, but which had a newly developed permitting program (see 50 C.F.R. 22.26). Significantly, the Fish and Wildlife Service has modified that program to allow permits, formerly limited to 5 years, to be issued for periods up to 30 years, thereby providing certainty throughout the expected operational lifetime of a wind farm. 78 Fed. Reg. 73707 (Dec. 9, 2013).
Environmentalists are now taking dead aim at that extension. In an April 30, 2014 letter to the Department of the Interior, the American Bird Conservancy provided notice of its intent to sue for violations of NEPA, the Endangered Species Act and the Bald and Golden Eagle Protection Act because of the agency’s authorization of thirty year eagle “take” permits. In giving the notice, the Conservancy particularly noted that the Fish and Wildlife Service, in establishing the program in 2009, had stated that a permit period of five years or less was appropriate “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 the golden eagle.” 74 Fed. Reg. 46856. The National Audubon Society is considering similar legal action.
Because neither the MBTA nor the Bald and Golden Eagle Protection Act have citizen suit provisions, another, less successful focus of environmentalists has been to attempt to bootstrap avian protection issues on other agency permitting processes, like challenges to the permitting authority of the US Bureau of Ocean Energy Management and the Corps of Engineers
The take-away: if you are planning a wind farm project, you better be prepared to lawyer up to defend against what could be meritless, but expensive and project-delaying, law suits.