Jump to Navigation

A New Approach by USFWS Over Wind Energy Avian Issues

January 21, 2016

In December of 2014, just six months after obtaining the first eagle take permit for a wind project, EDF Renewable Energy (EDF RE) completed negotiations over, and subsequently signed, an agreement (Agreement) with the United States Fish and Wildlife Service (USFWS) that exempts eight of EDF RE’s wind projects from liability for the past take of birds protected under the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA). The Agreement also exempts the projects from enforcement of future avian mortalities in exchange for EDF RE’s diligent pursuit of BGEPA take permits for each project. As the first known agreement of its kind in the wind industry, it may serve as a roadmap for wind farm operators seeking to avoid criminal enforcement.

Background

First enacted in 1918, the MBTA[1], makes it a crime to “pursue, hunt, take, capture, kill, attempt to take, capture or kill,” possess, sell, purchase, or ship any migratory bird or any part, nest or egg of a migratory bird unless authorized by regulation. More than a thousand bird species are currently protected under the statute.

In May of this year, USFWS began the scoping process for an MBTA permitting program that would allow wind farm operators and other industrial activities to exempt themselves from liability under the MBTA for unintentional take.

But there is disagreement over whether the MBTA even applies to incidental take. The Court of Appeals for the Fifth Circuit recently considered the question in depth in U.S. v. Citgo Petroleum, which involved bird deaths in an oil-water separator.[2] The court – relying in part on earlier rulings from the Eighth and Ninth Circuits[3] – ruled that the MBTA does not prohibit the unintentional and indirect (i.e., “incidental”) take of migratory birds due to otherwise lawful activities.

On the other hand, courts in the Tenth Circuit have agreed with USFWS that the MBTA is a strict liability statute triggered by bird deaths that incidentally result from otherwise lawful activity.[4] The Second Circuit reached the same conclusion some time ago.[5]

The circuit split on the scope of MBTA liability complicates assessment of the risks posed by incidental migratory bird deaths. But projects located in areas where bald or golden eagles may be found must also weigh their exposure under BGEPA[6] as well as the MBTA. Like the MBTA, BGEPA prohibits the “take” of eagles except as authorized by regulations. The BGEPA definition of “take” is broader than under the MBTA, however, encompassing “molest or disturb” as well as “pursue, shoot, shoot at, poison wound, kill capture, trap, collect” or destroy. Unpermitted eagle take may give rise to civil penalties, or to misdemeanor criminal penalties if the take is “knowing” or results from “wanton disregard for the consequences” of actions.[7]

In 2009, USFWS adopted a rule authorizing permits for incidental eagle take. To date, only one eagle take permit has been issued, for EDF RE’s Shiloh IV Wind Project in Solano County, California. However, a number of other eagle take permit applications are pending with USFWS.

Although USFWS is particularly focused on bald and golden eagle mortalities caused by wind projects, it has preferred to take its criminal enforcement actions with the Department of Justice (DOJ) under the MBTA rather than BGEPA, apparently because criminal violations under BGEPA require a showing that an eagle was knowingly taken.[8]

Recent Wind Industry MBTA Settlements

In November 2013, Duke Energy Renewables (Duke) entered into the first MBTA criminal plea agreement with USFWS for a wind energy facility. The agreement resolved misdemeanor charges based on the mortality of 163 migratory birds, including 14 golden eagles, at two projects and included commitments, but no charges, concerning two other wind projects where some migratory bird deaths but no eagle deaths had been reported. In December 2014, PacifiCorp entered into an MBTA plea agreement that resolved misdemeanor charges regarding the mortality of 338 migratory birds, including 38 golden eagles, at two projects and also included commitments, but no charges, regarding two other wind energy projects. Up-front payments of penalties, restitution, and community service fees totaled $1 million in the Duke settlement and $2.5 million for PacifiCorp. Each settlement also required payment of up to $600 thousand per year for five years of research and development work.

The Duke and PacifiCorp plea agreements both related to wind projects located in Wyoming (which is within the Tenth Circuit) and both were entered in the Wyoming federal district court.

Origin and Scope of the EDF RE Agreement

USFWS broached the subject of a “legacy take” agreement with EDF RE shortly before announcing its intent to grant an eagle permit for EDF RE’s Shiloh IV project in June 2014. Negotiations ensued shortly thereafter, resulting in an agreement before the end of the year.

The Agreement exempts eight EDF RE projects from enforcement actions for the take of birds protected under BGEPA and the MBTA that “may have occurred” up to five years earlier (the Agreement includes an express “neither admit nor deny” clause). Five of the projects are located next to one another in Solano County, California, and include Shiloh IV. The other three projects are located in Alameda County, California, within the Altamont Pass Wind Resource Area.

The Agreement requires EDF RE to seek eagle permits for the seven covered projects that do not have an eagle permit. The Agreement exempts these projects from prosecution for any takes occurring during the diligent pursuit of the eagle permits, as well as during the implementation of certain corrective actions outlined below.

No criminal prosecution

The Agreement’s preamble states that USFWS agrees to “resolve civil enforcement” and “refrain from referral [to the DOJ] for criminal prosecution” of the alleged legacy take described above. In other words, the Agreement is not a formal settlement of a criminal court action, as was the case with Duke and PacifiCorp in 2013 and 2014.

Good behavior

USFWS enumerated a series of factors that induced it to refrain from enforcement of alleged past takes, including EDF RE’s proactive approach to pursue the first eagle take permit in the country, cooperation and willingness to seek eagle permits for seven other projects (the addition of projects outside Solano County was at EDF RE’s election), its “voluntary disclosure” of possible take at the facilities, and corrective actions to be taken, largely in the form of eagle detection and deterrent research and development (see below).

USFWS also identified “special circumstances” in this case, including the extensive, unique restrictions that apply to the covered projects located within the Altamont Pass Wind Resource Area (where the largest number of takes potentially occurred) as a consequence of a settlements in 2007 and 2010 over avian mortalities that require, among other things, winter shut-down periods and the removal of all legacy turbines before October 2018.

Corrective actions

EDF RE agreed to expend a minimum of $405,000 in research and development of eagle detection and deterrent technologies, presumably across some or all of the seven wind projects that lack a permit. Projects are to be selected based on the following criteria, listed in decreasing order of importance: (i) reasonable potential for reducing take of bald eagle, golden eagle, red-tailed hawk, and American kestrel; (ii) potential for expanding currently available detection and deterrence technologies; and (iii) cost of the proposed work. In particular, the Agreement required EDF RE to consider the use of audio-visual tools (sound, video, radar, low-intensity laser).

Each research and development proposal must be peer reviewed by a third party not employed by EDF RE or by the U.S. Government. Research can be coordinated with third parties as long as it directly relates to reducing bald eagle, golden eagle, red-tailed hawk, and American kestrel take at the covered EDF RE projects.

Other provisions of the Agreement include detailed research reporting procedures, spot site monitoring by USFWS, and an express BGEPA, MBTA and Endangered Species Act take exemption for the treatment of injured and deceased birds found during research and development work.

Eagle permits

EDF RE agreed to submit draft Eagle Conservation Plans and BGEPA permit applications for five of the seven unpermitted projects within one year of the of signing the Agreement and within 18 months for the other two.

In return, USFWS agreed to prepare a single Environmental Impact Statement for all of the applications and render a decision on each application no later than three years after deeming the applications complete, although EDF RE’s sole remedy for enforcing the provision is to terminate the Agreement (and potentially expose itself to enforcement).

USFWS also agreed to exempt from enforcement any covered projects that EDF RE decides to decommission before obtaining a BGEPA permit for that facility.

Civil penalty

USFWS accepted a single $10,000 payment from EDF RE in full satisfaction of all civil penalties for the alleged legacy BGEPA and MBTA violations of the eight projects, provided each project fully complies with the Agreement.

Data rights

USFWS reserved the right under the Agreement to use all historical data and information generated in connection with the Agreement in research and in other investigations or legal proceedings.

Potential Expansion to Additional Projects

In the Agreement, the USFWS expressed the unique nature of the Agreement and stressed that it should not be construed as precedent for other agreements as others should not expect such terms. Nevertheless, there is a clear USFWS desire to encourage other projects to pursue permitting approaches even if enforcement exposure is used to bring other parties to the table. In an effort to facilitate the remediation of third party project legacy take issues, the Agreement even contains a provision allowing EDF RE to enter into a similar agreement (Other Agreement) for any wind projects it acquires within three years of the Agreement that, at the time of acquisition are either (i) within Region 8 of the USFWS, in the process of repowering, and have made a substantive effort to reduce eagle take; or (ii) currently not in the process of repowering, but are either located within the Montezuma Hills Wind Resource Area (where the Shiloh projects are located) or are subject to the terms of the 2007 and 2010 Altamont Pass settlement agreements.

The Agreement specifies five areas where these Other Agreements would differ from the current Agreement which may provide guidance for other operators as the starting point for other agreements with USFWS:

1. Minimum research and development funding would equal the sum of (a) $100,000; plus (b) $25,000 for each bald or golden eagle take in the five prior years (but only $5,000 per eagle if the project complies with the 2007 and 2010 Altamont Pass settlement agreements); plus (c) $100,000 for all other MBTA species taken in the five prior years.

2. Application for an eagle permit must be filed within 12 months of each Other Agreement.

3. USFWS would commit to “diligently process” the Eagle Permit “in an expeditious matter” but there would be no USFWS commitment to a single NEPA document or a three year limitation on the processing of a complete application.

4. A $5,000 civil penalty (the maximum civil penalty under BGEPA) for each eagle taken in the prior five years instead of a single, aggregated $10,000 civil penalty.

5. No “Other Agreements” provisions – there would be no automatic ability to extend the arrangement to later-acquired projects.

Implications

The Agreement is similar in concept to administrative consent orders or agreements commonly used under more recent environmental laws, an approach we have suggested in the past as an alternative to criminal prosecution for the take of eagles in particular.[9]

The Agreement – its “Other Agreement” section in particular – could provide a framework for similar agreements between USFWS and other wind farm operators at a cost significantly less than the Duke and PacifiCorp settlements, and without the stigma of criminal prosecution. Sources indicate that earlier this year the USFWS began to present the Agreement to other operators although supposedly offering stricter terms. As such, it could be an important step toward developing administrative consent agreements as a tool for resolving eagle and other migratory bird take.

Systematic replication of the Agreement could provide wind energy facilities with a viable alternative to the MBTA incidental take permitting program USFWS began to explore in May of this year.[10] Consent agreements rely on agency enforcement discretion and so offer less certainty when compared to a permitting program. But development of an MBTA permitting program – potentially encompassing a wide variety of industries and activities – is likely to be protracted and contentious. If ultimately adopted, an MBTA permitting program may well prove cumbersome for regulated sources and could be an overwhelming administrative burden for USFWS. Administrative consent agreements may afford more room for custom tailoring and give wind farm operators greater negotiating flexibility.

Such agreements may also allow developers and operators to better manage their own risk by weighing the benefits of an administrative solution against circuit splits and changing case law, including the potential for USFWS and DOJ to circumvent circuit splits by bringing (or threatening) criminal actions under BGEPA, notwithstanding the higher burden of proof it requires.

Wind facility developers and operators may share different opinions over the details of the Agreement, but it points to a more flexible alternative to criminal prosecution and may suggest an alternative to the nascent concept of MBTA permitting.

[1] 16 U.S.C. §§703-711.

[2] U.S. v. Citgo Petroleum Corp, __. F.3d __, 2015 WL 5201185, *9-*14 (5th Cir. Sept. 4, 2015).

[3] U.S. v. Brigham Oil and Gas, 840 F.Supp.2d 1202 (D. ND 2012); Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 303 (9th Cir. 1991); Protect Our Communities Foundation v. Salazar, 2013 WL 5947137, *17-*18 (S.D. Cal. 2013); Protect Our Communities Foundation v. Jewell, 2014 WL 1364453, *21 (S.D. Cal. 2014).

[4] E.g., United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir.2010) (affirming oil producers’ misdemeanor convictions under the MTBA after dead migratory birds were discovered lodged in pieces of their oil drilling equipment); United States v. Moon Lake Electric Ass’n, Inc., 45 F.Supp.2d 1070, 1074 (D.Colo.1999) (“In proscribing the acts of taking, capturing, killing, possessing, selling, purchasing, importing, exporting and transporting, Congress expressed a clear intent to proscribe conduct beyond that associated only with hunting, trapping or poaching.”)

[5] United States v. FMC Corp., 572 F.2d 902, 905 (2d Cir.1978).

[6] 16 U.S.C. §§668-668d.

[7] 16 U.S.C. §668.

[8] 16 U.S.C. § 707(a).

[9] Marten Law Newsletter “Golden Eagle Mortality at Wind Energy Projects – Implications of Duke and PacifiCorp Plea Agreements,” January 21, 2015.

[10] Marten Law Newsletter “U.S. Fish & Wildife Proposes Incidental Take Rule for Migratory Birds,” June 17, 2015.

This article is not a substitute for legal advice. Please consult with your legal counsel for specific advice and/or information. Read our complete legal disclaimer.