Last week the U.S. Department of the Interior issued the anticipated final regulation permitting “the take [injure, kill or otherwise disturb] of bald eagles and golden eagles” for wind energy projects.
For some context, less than two weeks before the issuance of the new rule, Duke Energy plead guilty to two misdemeanor counts as described in our earlier post, First Ever Criminal Prosecution For Deaths Of Birds By Wind Turbine. And there are at least seven other cases of bird kills by wind turbine that have been referred by U.S. Fish and Wildlife to the Justice Department for prosecution.
Less than two weeks before that guilty plea, the Federal government was for the first time soliciting comments on the issuance of a take permit “for recurring eagle mortalities” associated with the operation of the Shiloh IV wind turbine project in California, as detailed in our post, Comment on the Permit to Kill Eagles with Wind Turbines.
And then last Friday, President Obama signed a memorandum directing the Federal government to consume 20% of its electricity from renewable sources by 2020, more than double the current goal for solar and wind of 7.5%. Without this new regulation permitting the take of eagles at wind projects that new goal would likely not have been attainable.
By way of background, in 2009, the Interior Department created a program under the Bald and Golden Eagle Protection Act to issue permits for 5 years to operators of wind turbines for a programmatic take of eagles. The new regulation, effective immediately, including allowing for 30 year permits. There is arguably some basis for the change because no permits were ever issued under the 2009 program. Interior received 15 applications (although most were deemed not complete). Only one application reached the public comment stage, .. the California project described in our post above.
Despite that the final regulation uses the term “renewable energy projects” the rule only has current application to wind turbines and not, by way of example solar panels. Although U.S. Fish and Wildlife has apparently collected 32 dead birds of the 52 birds reported killed In October by solar panels at the Ivanpah solar power plant in California.
And none of this addresses the common bird electrocutions or collisions with power lines and poles, whether the source of power in renewable or otherwise.
Additionally, procedurally in violation of NEPA, Interior failed to prepare an environmental impact statement, much less an environmental assessment prior to increasing the maximum duration for programmatic eagle take permits by six-fold.
All of this strikes many as bad energy policy and bad environmental policy. Moreover many are calling for not just equal application of laws for wind or other renewable energy, but equal treatment for all domestic sources of energy both in the name of securing U.S. energy and protecting planet Earth.
What is clear from all of this is that developers of energy projects, renewable and otherwise, and even energy projects not currently subject to avian regulation, need to consider and evaluate applying for take permits.