Taking Birds Under Their Wing: Bird Conservation Group Petitions Government for Regulation of Wind Turbines

Harnessing the wind – such an attractive notion in these times when awareness of the benefits of clean renewable energy is heightened.  Wildlife conservation groups (and in an ironic and hilarious way, hunting groups) are speaking out about an ugly side-effect of wind energy: bird deaths.  Yes, that’s right.  Hundreds of thousands of birds are killed each year by collisions with wind turbines.  (The number of actual deaths per year is disputed by different sources however, the U.S. Fish and Wildlife Service estimated in 2009 that 440,000 bird deaths per year were attributable to wind turbines.)

Earlier this week, the American Bird Conservancy (ABC) submitted a formal Petition for Rulemaking to the U.S. Fish and Wildlife Service (FWS) requesting that FWS develop permitting regulations in order to protect birds from death at the hands (“arms” is more accurate, I suppose) of wind energy turbines.  ABC’s proposed rules would institute a permitting system under the Migratory Bird Treaty Act (MBTA), with factors such as siting, operation, construction and bird monitoring considered when determining whether to grant or deny a permit.  The ultimate goal of the framework would be to not only keep bird deaths to a minimum, but to reduce the likelihood of habitat destruction as well.

Currently, there are only voluntary guidelines which the wind turbine industry can choose to follow or not.  And although there are federal laws that apply (mainly the MBTA, but in some cases also the Bald and Golden Eagle Protection Act or the Endangered Species Act), apparently no wind energy company has ever been prosecuted under them by federal wildlife officials.  (Such prosecutions are fairly commonplace for other industries like the electrical industry.)

Certain “mass mortality events” that have hit the news in recent years in places like Altamont Pass in California and West Virginia have motivated groups like the ABC to push for greater regulation.  In fact, a few years ago, the Center for Biological Diversity (CBD) filed a law suit against owners and operators of wind turbines in Altamont Pass.  While the California Court of Appeal agreed that these birds are a public trust resource, the court held that the proper party to the action is the public agency in charge of permitting, not the owners and operators of the turbines.  See Center for Biological Diversity v. FPL Group, Inc., 166 Cal.App.4th 1349 (2008).

Why then didn’t the ABC simply sue the FWS rather than calling for a rulemaking?  The answer: exhaustion of administrative remedies.  In other words, the ABC must first use the internal procedures of the administrative agency with jurisdiction to attempt to achieve their goal.  Typically this involves petitioning the agency (in this case, the FWS) for the remedy (in this case, a reduction in bird deaths through regulation).  If the petition is rejected after the ABC has gone through the process of requesting the rule-making and has also jumped through a series of other procedural hoops (typically a hearing and internal appeal process), only then can the ABC initiate a lawsuit against the FWS.