Academic journal article Energy Law Journal

Regulating Avian Impacts under the Migratory Bird Treaty Act and Other Laws: The Wind Industry Collides with One of Its Own, the Environmental Protection Movement

Academic journal article Energy Law Journal

Regulating Avian Impacts under the Migratory Bird Treaty Act and Other Laws: The Wind Industry Collides with One of Its Own, the Environmental Protection Movement

Article excerpt


In the renewable energy sector, wind-based energy development continues to expand. Federal and state-based programs encourage the development of renewable energy, and wind appears to be taking the lead. Conferences focused in wind energy abound, many at capacity. Many utilities and traditional energy companies are aggressively entering this sector. Amidst this booming era for wind energy, however, some problems have been gradually developing. Most are the types of problems any industry expansion must endure, such as equipment reliability problems with new, significantly larger scale, wind turbines.' Larger wind turbines mean more visibility, which, predictably, increases the likelihood of visual and aesthetic impact issues.2 Transmissionrelated constraints have also arisen as wind energy deals with one significant disadvantage compared to fossil fuels: its immobility. Transmission must come to wind facilities, not vice-versa.3

One particularly interesting problem emerging in the wind industry, however, involves a long-time friend of the industry and a long-known issue. Wind energy, like most forms of renewable energy, has long been promoted as being environmentally friendly. To some extent, that is one reason for the push toward renewable energy-the reduced environmental footprint of renewable energy.4 Thus, many protectors of the environment, long concerned over the effects of excess combustion of fossil fuels in generating electricity, promoted, if not championed, renewable energy in general and, in particular, wind energy. Wind energy is valued in part for its "green" character. It has no direct emissions of air contaminants or green house gasses, and involves almost no recognizable environmental harm in its installation and operation. That is, except for birds.

Avian impacts, originally mostly ignored by many in the development of wind energy, have become a significantly more visible issue for many wind projects.5 In part, this is due to wind energy's success. As wind energy's role in the United States electricity industry has grown, so too has notice of avian impacts. Birds and bats,6 of course, collide with wind turbine blades as they rotate in the sky.7 Such impacts, often referred to as "avian mortality," would normally be evaluated and managed like many other undesired environmental side-effects. Avian impacts present an awkward issue for the environmental protectors that promoted wind energy. The historical origins of the wind energy industry, combined with several complicating federal laws-the Migratory Bird Treaty Act (MBTA)8 in particular-have created a growing issue with no resolution in sight. How well the wind industry deals with avian impacts may determine the ability of the industry to continue its amazing success.

This article explores the complexity, and perhaps irony, of the avian impacts issue facing the wind industry. section II provides background on the history and make up of the wind energy industry and its regulation. section III explains the laws protecting avian wildlife, particularly the MBTA. The application and enforceability of the MBTA is explained in light of several recent cases that may lead to increased enforcement of the act against some wind projects. Section IV explores the confrontation between wind energy, with its avian impacts, on the one hand and the wildlife protection laws, with their green values and supporters, on the other hand. section V evaluates the proposed root of the problem, conflicting values, and considers what policy and actions should be taken to resolve the conflict. The article concludes with a call for action by both the legislature and the agencies tasked with enforcement to create a cohesive and updated balance of law and policy that will allow the United States to further tap into its important and vast wind energy resource.


Wind energy has long been harnessed for its energy content. …

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