Wind Power, Wildlife, and the Migratory Bird Treaty Act: A Way Forward

Article excerpt

  I. INTRODUCTION: EMERGENCE AND RAPID GROWTH OF MODERN WIND POWER IN
     THE UNITED STATES
 II. AVIAN AND BAT IMPACTS
III. PERTINENT FEDERAL WILDLIFE LAWS
 IV. INCIDENTAL TAKE OF BIRDS UNDER THE MIGRATORY BIRD TREATY ACT
     A. Legislative History of the Migratory Bird Treaty Act
        1. Early History of Migratory Bird Conservation in the United
           States
        2. Protected Species Under the Migratory Bird Treaty Act
        3. Migratory Bird Treaty Act Administration and Provisions
     B. Judicial Review of MBTA Application to Incidental Take
        1. Cases Addressing the Question of MBTA Applicability to
           Incidental Take and Legal Developments
        2. Jeremy Firestone--Courts Will Tend to Find that the MBTA
           Does Not Reach Wind Turbine Takes
        3. Meredith Lilley--Courts Will Tend to Find that the MBTA
           Does Reach Avian Take from Wind Facilities
        4. Cases Further Addressing the Breadth of Incidental Take
           Under the MBTA
     C. Enforcement Issues and Prosecution Likelihood
        1. Cases Addressing Enforcement Issues
        2. Likelihood of Prosecution
  V. AN EXAMINATION OF COMPARATIVE IMPACTS OF ELECTRICITY PRODUCTION
 VI. NEXT STEPS
     A. Onshore Wind Sites
     B. Offshore Wind Sites
     C. Scientific Research Recommendations
     D. MBTA Shortcomings and Legal Recommendations
        1. The MBTA Should Be Amended to Allow Incidental-Take Permits
           a. Preconstruction Monitoring Protocols
           b. Postconstruction Monitoring Protocols
           c. Field-Tested and Validated Mitigation Measures
           d. Increased Coordination Between Wind Facilities and the
              FWS
        2. The MBTA Should Be Amended to Include Opportunity for
           Public Comment, Civil Sanctions, and Citizen Suit
           Provisions
     E. Additional Recommendations
        1. Bats
        2. Increased Federal Funding
        3. Improved Analysis
     F. Conclusion

I. INTRODUCTION: EMERGENCE AND RAPID GROWTH OF MODERN WIND POWER IN THE UNITED STATES

Wind power is the world's most rapidly growing source of energy. (1) In the United States alone from 1980 through 2007, installed wind energy capacity increased from effectively zero (2) to more than 16,800 megawatts (MW), (3) where one MW of wind power generates enough energy for approximately 230 homes. (4) This upsurge has largely been attributed to rising energy costs, a desire to decrease domestic dependence on foreign oil, (5) and governmental incentives, which in turn, have been driven by increased environmental concerns over air quality and climate change impacts of fossil-fuel electricity. (6) Furthermore, advances in wind turbine technology have made wind power more reliable, efficient, cost-effective, and thus more competitive against traditional forms of energy generation, such as coal and natural gas. (7)

All of these changes have indeed created an "unparalleled opportunity for wind energy to emerge as a viable mainstream electricity source and a key component of the world's environmentally sustainable development path." (8) Unlike fossil fuels, wind is inexhaustible. The planet's wind resource potential, in fact, is about five times the global energy demand. (9) Furthermore, given present trends, the continued integration of wind power into the energy sector could achieve a 4.5% reduction in carbon dioxide emissions by 2020. (10) Yet, the "challenges facing wind energy remain both substantial and complex." (11) Wildlife impacts serve as one such obstacle for the wind industry, and as wind power expands in the United States, so too do concerns about the impact of wind farms on avian and bat species. (12)

In Part II of this Article, we discuss anthropogenic effects on avian and bat species with particular emphasis on wind turbines. In Part III, we provide a broad overview of the U.S. wildlife laws most pertinent to the conservation of bats and migratory birds, before moving on to Part IV, where we provide a detailed account of the legislative history and judicial interpretation of liability for incidental take under the Migratory Bird Treaty Act (MBTA). …