The realization that greenhouse gases may be responsible for our warming earth is a fairly modern concern. It was just over 35 years ago during the first UN World Climate Conference that the idea first widely entered the public consciousness.
Since then it has been a rollercoaster of heightened public concern, followed by failures of collective action. It has been a history of adjustments in fits and starts, huge research projects, controversial experiments, and change on a scale so massive, and at a speed so fast, that sometimes unintended consequences have been unavoidable.
In the wake of the financial crisis, President Barack Obama, who campaigned on climate change action, made U.S. history when he directed an estimated $90 billion toward clean energy investments. The long-term subsidies fueled massive wind energy development in the United States, and the industry has since billowed in size and scope.
At the same time, Obama issued a flurry of administrative actions that accelerated renewable energy initiatives, notably an important 2009 executive order that called on each federal agency to set goals to reduce their greenhouse gas emissions by 2020.
For the U.S. Fish and Wildlife Service in particular, the president’s order presented a troubling dilemma: an obligation to support the growth of the wind energy companies and issue them permits, while at the same time protecting our national bird from harm.
The agency has a duty under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act to protect eagles. Wind turbines harm eagles. The long blades can slice unsuspecting birds, severely injuring them or killing them.
Lengthy regulations and guidelines have been written in an attempt to protect the birds, but in reality, the Wildlife Service’s ability to enforce the law is stymied by its lack of manpower and funding. It is difficult to even assess the true number of eagles being killed. With the exception of a few spotty bird counts, the rate of kills is virtually unknown.
Although thousands of bird species are subject to harm from wind turbines, eagle populations face a greater threat due to their slow breeding habits and low number of offspring. More golden eagles are at risk right now than bald eagles, because the majority of wind farms are built on federal lands typically located in Western states where golden eagle habitats are commonly found.
But despite lengthy regulations and guidelines to help wind companies avoid setting up wind facilities in eagle habitat areas, the facilities are going up anyway.
Wind Facility Permits
As the Bush administration was winding down in 2007, the Wildlife Service proposed, for the first time, to amend the Bald and Golden Eagle Protection Act to allow for incidental “take” (kill or injure) of these majestic birds for a term of five years. This action, largely done to accommodate wind facilities, also coincided with the bald eagle being taken off the endangered species list.
The Wildlife Service conducted a draft environmental assessment in 2008 and reopened the matter for public comment, resulting in a final environmental impact statement and the new 5-year permit being approved shortly before Obama issued his executive order for federal agency action.
After nearly three years of national debate over the veracity of global warming, Obama touted in his 2012 Democratic National Convention speech that “climate change is not a hoax,” and confirmed his stance that the science of climate change is true.
By November 2013, Obama had issued another executive order directing federal agencies to prepare for the impacts of climate change. The administration pushed for “new strategies to improve the Nation’s preparedness and resilience.”
This direction fell on the heels of other bold climate change announcements the president had made earlier in the year.
Consistent with Obama’s push, in December 2013, the Wildlife Service amended the 5-year regulation to extend the time wind facilities could legally kill eagles to 30 years. But this time, the change was not open for public comment, nor was an environmental assessment conducted.
The 30-year incidental take permits could give wind companies carte blanche to kill eagles in locations where eagles are frequently found. “The companies want 30-year permits because once they have those in hand it will be virtually impossible as a practical matter for the Fish and Wildlife Service to revoke them up or significantly amend them,” said Eric Glitzenstein, an attorney who is representing a conservation group in a law suit against the Wildlife Service.
Despite the new rule, a negligible number of permits are actually being issued, wind companies are still setting up facilities and usually not reporting eagle deaths—or are skewing the numbers—and the Wildlife Service knows there are no scientifically proven methods for avoiding eagle kills.
Michael Hutchins, Ph.D., director of the Bird Smart Wind Energy Campaign at the American Bird Conservancy (ABC), said the Obama administration acted too quickly when it pushed renewable energy goals without first looking into potential problems like birds being killed by wind turbines.
The number of operational wind energy projects across the country grew rapidly with over 1,000 projects representing over 48,000 wind turbines installed across 39 states and Puerto Rico, according to the American Wind Energy Association. In addition, more than 500 wind manufacturing facilities are spread across 43 states. The new wind energy generating capacity grew 31 percent between 2009 and 2013.
According to the U.S. Geological Survey website, “wind energy is one of the fastest-growing sectors of renewable energy in the United States.”
But the vast majority of these facilities do not have a permit and are therefore killing eagles illegally. Although officials from the Wildlife Service did not respond to inquiries about the number of permits issued to date, according to the Federal Register, only one new permit has been issued since 2009—to Shiloh IV Wind Project in Solano County, Calif.—which received a 5-year permit.
Three other wind projects located in Oregon, Colorado, and Maryland have submitted applications and are in different stages of the process.
The data on eagle kills is largely based on independent studies and best estimates rather than official reports from the Wildlife Service since wind facilities without permits don’t have an obligation to monitor the number of eagle deaths.
Only facilities that actually have a permit are required to “[intensively] monitor to estimate the actual annual fatality rate and to assess disturbance effects” to eagles, according to the regulations.
In a 2013 article published by The Raptor Research Foundation, titled “Bald Eagle and Golden Eagle Mortalities at Wind Energy Facilities in the Contiguous United States,” the Fish and Wildlife Service authors documented cases of eagle mortality at wind energy facilities over a period of 15 years from 1997 to 2012.
They used documents from the public domain and some reports from wind facilities, but excluded Altamont Pass Wind Resource Area (APWRA) in California, one of the oldest wind facilities with a history of significant bird fatalities. The final tally was 85 eagle deaths at 32 facilities in 10 states.
But the APWRA conducted its own study of eagle deaths from 1998 to 2003. The report revealed the difficulty in getting accurate eagle death counts, noting one bird hidden in a ground squirrel burrow, lack of access to all of the wind turbines, and uncooperative wind operators.
Out of the more than 1,100 bird deaths attributed to collisions with wind turbines that were found, 54 of those were golden eagles, as APWRA is located near a golden eagle habitat. The U.S. General Accounting Office reported that wind energy is not responsible for a large number of eagle deaths, according to Calwea.org. However, APWRA has proven to be “uniquely hazardous.”
When the 5-year permit was proposed, the Wildlife Service investigated the potential impact to eagles. But when the 30-year permit was proposed, the Wildlife Service applied a “Categorical Exclusion,” which is an exemption from the normal environmental assessment process that can be applied when the change is administrative in nature.
Looking at the rules of the 5-year permit and the new 30-year permit, both of them require the companies to submit environmental assessments at 5-year intervals.
So, what’s the difference?
There’s a big difference, according to the American Bird Conservancy, a 20-year-old nonprofit conservation group with the mission to conserve native birds and their habitats.
So much so that the group has filed a lawsuit against the Department of Interior and the Wildlife Service seeking to have the 30-year rule invalidated, according to their attorney Eric Glitzenstein. He said in an email the rule should be invalidated “while the FWS [Fish and Wildlife Service] engages in appropriate analysis of effects and alternatives under the National Environmental Policy Act [NEPA] and the Endangered Species Act.”
According to Glitzenstein, there is an enormous practical as well as legal difference between the two permits. The difference is “between purely internal reviews and publicly accountable renewal decisions and that is why the industry pushed for the change,” he argued.
In a 34-page motion for Summary Judgment seeking to have the court make a final ruling without a jury trial, ABC argues that the Wildlife Service failed to prepare an Environmental Impact Statement or even conduct an environmental assessment as required under NEPA, to determine whether or not the change will cause a significant impact to eagles and their habitats.
Hutchins says he asked the Wildlife Service to conduct a national environmental assessment to determine where wind facilities should and should not be placed, and he was told, “Good idea, but we don’t have the resources to do that,” he said.
Congress has cut federal government budgets causing the Wildlife Service to be understaffed and incapable of handling a nationwide assessment.
“Blame goes all around,” said Hutchins. “It’s Congress for cutting back all of the budgets for federal government. It’s the federal government for pushing wind and solar too fast without looking at the possible problems with it.”
He also questions whether or not wind companies that are reporting are providing accurate data. “FWS relies on wind energy companies to collect data on bird and bat mortality at the wind energy facility and report it to the FWS. That’s another direct conflict of interest, because if they report to the service that they’ve killed federally protected birds … they could get fined, could get shut down, they could be subject to expensive litigation,” said Hutchins.
ABC wants independent contractors to conduct the assessments and send their reports directly to the Wildlife Service. “Consultants working for the wind energy companies tend to downplay the existence of eagles,” he said.
Hutchins thinks wind energy development has gotten too far ahead of the science. “We don’t know if mitigation works in many cases. Some of it may very well work, but we don’t know. And the problem is that [wind farms] are being sited everywhere because we have voluntary guidelines,” he said.
Valid scientific studies and mitigation methods are not currently known and are likely years away. The Wildlife Service outright acknowledges there are no scientifically proven methods currently to reduce taking eagles at wind facilities.
“We are uncertain about the relative importance of different factors that influence that risk. We are also uncertain which strategies would best mitigate the effects of wind energy developments on raptors,” the Wildlife Service states in the regulation announcement for the 30-year rule.
The Wildlife Service published wind energy guidelines in 2014 to address the potential negative impacts of wind energy projects on eagles and other wildlife. The guidelines set forth a step-by-step scientific process wind companies are urged to implement to address wildlife conservation concerns.
The steps include: preliminary site evaluation, field studies to document wildlife and predict impacts, and post construction studies to document impacts on wildlife. The wind companies, however, are not required to follow the guidelines, and even if they did, the scientific process is only experimental and not proven to mitigate bird mortality.
The wind industry is in the early stages of conducting science-based studies. The American Wind Wildlife Institute (AWWI), a nonprofit organization of wind industry leaders, science and environmental organizations, and wildlife management agencies, is focused on more accurately predicting risks to eagles and providing solutions to wind energy companies and the Wildlife Service, said Abby S. Arnold, executive director of AWWI, in an email.
“Work is underway on several aspects of mitigation,” she wrote. “There are many studies in the works, not all sponsored by AWWI, or yet published and tested, but the field is rapidly advancing given the exciting ongoing research on solutions to permit wind energy while conserving eagles.”
AWWI is working in collaboration with conservation groups and universities who are also conducting independent science-based studies to more accurately predict risks to eagles.
Without published scientific methods for mitigation, the Wildlife Service cannot force permitted wind facilities to follow specified mitigation measures and it can’t force unpermitted facilities to do anything at all. It doesn’t have the funding to conduct a nationwide assessment of potential impacts to eagles. And, it would be hard-pressed to shut down a legally operating wind facility that is providing the much sought-after renewable energy.
ABC’s lawsuit aims to force a solution to at least one of these dilemmas.
Additional Reporting by Ananda West