The federal government Friday announced the first-ever criminal enforcement of bird-protection laws at a wind energy facility, fining a North Carolina-based energy giant $1 million for killing more than 150 migratory birds, including 14 golden eagles, at two Wyoming wind farms over the past few years.
The government's plea agreement with Duke Energy Corp. could have broad legal implications as the Obama administration and the wind industry grapple with the ecological trade-offs of building commercial-scale wind farms across the landscape.
Friday's penalty sends a clear message that wind farms, despite their climate benefits as a source of renewable energy, are no longer exempt from a 1918 law that protects more than 1,000 migratory bird species.
"This case represents the first criminal conviction under the Migratory Bird Treaty Act for unlawful avian takings at wind projects," said Robert Dreher, acting assistant attorney general for the Justice Department's Environment and Natural Resources Division. "In this plea agreement, Duke Energy Renewables acknowledges that it constructed these wind projects in a manner it knew beforehand would likely result in avian deaths."
The plea agreement submitted to the U.S. District Court for the District of Wyoming requires Duke to pay $1 million in fines, restitution and community service and puts the company on probation for five years. Duke must also implement an environmental compliance plan to prevent bird deaths at its four commercial wind projects in the state as well as apply within two years for eagle take permits from the Fish and Wildlife Service to ensure that future golden eagle deaths are minimized and offset.
The deaths occurred at Duke's Campbell Hill and Top of the World wind projects, which went online in 2009 and 2010, respectively, and produce a combined 300 megawatts. The projects on private agricultural lands killed 163 migratory birds from 2009 to 2013, including golden eagles, American kestrels, ferruginous hawks, prairie falcons, owls, sparrows, swallows and warblers, according to DOJ.
Despite warnings from Fish and Wildlife, Duke "failed to make all reasonable efforts to build the projects in a way that would avoid the risk of avian deaths by collision with turbine blades," DOJ said.
"To its credit, once the projects came online and began causing avian deaths, Duke took steps to minimize the hazard, and with this plea agreement has committed to an extensive compliance plan to minimize bird deaths at its Wyoming facilities and to devote resources to eagle preservation and rehabilitation efforts," Dreher said.
Duke will pay $400,000 to the federally administered North American Wetlands Conservation Fund, which supports the acquisition and conservation of migratory bird habitat. It will also pay $100,000 in restitution to Wyoming and make a $160,000 payment to the congressionally chartered National Fish and Wildlife Foundation for projects aimed at protecting golden eagles from wind farms.
The company will also pay $340,000 to a conservation fund to acquire lands or secure conservation easements in Wyoming containing high-use golden eagle habitat. The company expects to spend $600,000 per year implementing its compliance plan.
"We deeply regret the impacts to golden eagles at two of our wind facilities," said a statement by Greg Wolf, president of Duke Energy Renewables. "We have always self-reported all incidents, and from the time we discovered the first fatality, we've been working closely with the Fish and Wildlife Service to take proactive steps to correct the problem."
The company said it was among the first in the industry to install radar equipment used to detect incoming missiles in Afghanistan to scan for airborne eagles at the project sites, which can trigger the temporary shutdown of turbines.
Other steps include removing rock and debris piles that attract eagle prey to project sites and meeting regularly with the Fish and Wildlife Service to develop adaptive mitigation measures, the company said.
"Top of the World and Campbell Hill were some of the first wind sites we brought into service, during a period when our company's and the wind industry's understanding of eagle impacts at wind farms was still evolving," said Tim Hayes, environmental development director at Duke Energy Renewables, adding that both facilities were developed before FWS released wind energy or eagle conservation guidance.
Since implementation of a voluntary monitoring and curtailment initiative, more than a year passed without any golden eagle fatalities at the two sites, he said.
The American Wind Energy Association called the plea agreement "a clear example of a wind company taking responsibility for unforeseen impacts to wildlife and providing conservation measures."
The industry is facing criticism that the Obama administration gives turbine operators a free pass despite clear violations of bird protection laws -- while penalizing the oil and gas industry for violating those same statutes.
A recent report by Fish and Wildlife Service scientists that wind farms have killed at least 85 eagles in nearly a dozen states over the past 15 years did nothing to tamp down the scrutiny (E&ENews PM, Sept. 11).
Birds are killed by collisions with turbines and meteorological towers and their guylines; collisions with or electrocutions at transmission lines; and nest abandonment or behavioral avoidance from habitat degradation.
AWEA argues that eagle deaths at wind turbines are "far lower" than those from other leading causes, including lead poisoning, electrocutions from power lines, vehicle collisions, drowning in stock tanks and illegal shootings.
"No form of energy generation, or human activity for that matter, is completely free of impacts and wind energy is no exception," AWEA said in its statement. "When coupled with the fact that experts globally see climate change as the single greatest threat to wildlife and their habitats, wind energy ... is a key to both meeting our nation's energy needs and protecting wildlife in the U.S. and abroad."
Implications hard to predict
The legal implications of Friday's decision remain unclear.
Fish and Wildlife has 18 active investigations of migratory bird violations and has referred six of them to DOJ, a sign that the government is becoming more willing to crack down on violations.
At a minimum, Friday's decision is expected to encourage more wind developers to comply with federal guidelines finalized in early 2012 that recommend early consultations with the Fish and Wildlife Service to site projects to avoid bird kills and minimize other damage to natural resources (Greenwire, March 23, 2012).
While the recommendations are voluntary, they offer the agency a barometer for whether a company made a good-faith effort to avoid bird kills, evidence his agency will consider when making enforcement decisions under MBTA, said FWS Director Dan Ashe.
"The potential liability is that if you kill birds, then we'll come get you. We'll fine you," Ashe said at a federal advisory committee meeting on the guidelines in July 2011 (Greenwire, July 20, 2011). "If we have guidelines which reflect best practices and somebody doesn't follow them and ends up killing birds, that's going to make it much easier to prosecute."
It's notable that Duke was not charged for violating the 1940 Bald and Golden Eagle Protection Act, a similar law that carries fines of up to $200,000 and prison time for killing or disturbing the national bird or its golden kin -- though neither is considered endangered.
Unlike MBTA, violations of the BGEPA must be knowing, a higher legal bar.
While Fish and Wildlife documented violations of the eagle law and referred them to DOJ, the attorney general's office decides what charges to file, or in this case, what to settle on, a Fish and Wildlife spokesman said.
Bird advocates cheered the migratory bird penalties but said they must be more than a one-time shot across the bow.
"It takes more than one symbolic action to prove there is a real environmental cop on the beat," said Mike Daulton, vice president of government relations for the National Audubon Society. "This is an important first step, but the Interior Department still has not finalized a single permit for a wind project under the Bald and Golden Eagle Protection Act, and it is considering rule changes that would weaken protection for eagles."
George Fenwick, president of the American Bird Conservancy, said companies have thus far been exempt from bird protection laws despite "widespread" violations.
"This is a welcome action by DOJ and one that we have long anticipated," he said. "Wind energy is not green if it is killing hundreds of thousands of birds."
The group cited a 2009 study that found wind farms are responsible for roughly 440,000 bird deaths a year and a 2010 Department of Energy plan calling for a twelvefold increase in wind energy capacity by 2030.
Not all 440,000 of those bird deaths violate MBTA or BGEPA.
"The wind industry should be treated like other for-profit energy industries," said Michael Hutchins, who coordinates the American Bird Conservancy's "bird smart" wind energy campaign. "We believe it's necessary to enforce development restrictions on wind, such as avoiding bird migration corridors and places where protected species and sensitive habitats are present."
Bird advocates are battling a separate Fish and Wildlife plan to allow wind farms and other projects to apply for 30-year eagle "take" permits instead of the current five-year permits.