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Eagles win, wind farms and feds lose in court

Photo from Flickr Commons

Photo from Flickr Commons

NATIONAL SYMBOL WINS IN COURT: A decision by a federal court judge rescinded the U.S. Fish and Wildlife’s 30-year exemption for wind energy and other companies that kill birds such as bald eagles during “normal operations.”

By Rob Nikolewski

Eagles — and the people who love them — picked up a big win in court this month.

How the victory may affect the Obama administration’s desire to dramatically ramp up wind energy production to meet its climate change goals is still unclear.

“We believe it’s very good news for eagles,” Michael Hutchins, director of the American Bird Conservancy’s Bird-Smart Wind Energy Program, of the Aug. 11 decision by a federal court rescinding a controversial rule proposed by the U.S. Fish and Wildlife Service that granted a 30-year exemption to wind energy and other companies for killing bald and golden eagles.

“We can’t have people do end-arounds and have them not go through the process,” said Hutchins, whose group helped take the case to court. “The Fish and Wildlife Service needs to follow the legal foundations established through the law.”

In a 46-page decision, U.S. District Judge Lucy H. Koh, an Obama appointee, ruled the USFWS violated the National Environmental Policy Act when its director, Dan Ashe, decided two years ago to allow the agency to issue the 30-year permits without going through environmental impact assessments.

Koh cited comments from Fish and Wildlife’s own staff that the rule-making process leading to the 30-year exemptions was a “trainwreck” and that it was a “no-brainer” the agency needed to follow the National Environmental Policy Act.

Photo by the U.S. Fish and Wildlife Service

Photo by the U.S. Fish and Wildlife Service

DANGEROUS FLIGHT: The American Bird Conservancy wants wind farms to be located away from migratory lanes used by birds to avoid what’s called “avian mortality.”

As a result of the court decision, USFWS has to go back to issuing five-year permits for wind energy and other companies that kill eagles during normal operations. If the agency wants to revive the 30-year exemption, it has to go through proper environmental impact assessments.

Watchdog.org sent an email to USFWS asking a series of questions about the impact of the ruling but did not receive a response. Update 8/27: Watchdog.org received a response from a USFWS spokeswoman Thursday morning, saying there was not much the agency could say about the court’s decision “at this time except we are reviewing the court’s ruling in conjunction with our solicitors.” As for the agency’s plans to avoid bird deaths at wind farms, Laury Marshall Parramore at the Division of Public Affairs at USFWS said in an email, “the Service is working with wind energy producers in a variety of ways through our Voluntary Land Based Wind Energy Guidelines to address current and potential impacts of wind energy production on a variety of wildlife species, including bald and golden eagles.”

The agency has 60 days to file an appeal, but Hutchins doubts USFWS will do that.

“It was a long, very involved decision (that) was very well researched,” Hutchins told Watchdog.org. “So we don’t think the Fish and Wildlife Service is going to appeal this, but you never know.”

The Obama administration has made increasing wind energy one of its cornerstones in battling climate change and implementing its Clean Power Plan.

Calling the plan “the single most important step America has ever taken in the fight against global climate change,” President Obama earlier this month released details mandating power plants cut greenhouse gas emissions 32 percent by 2030 and calling on states to come up with their own, individualized emissions reduction targets, starting in 2022.

To achieve those goals, more wind energy is considered crucial.

The industry’s chief booster, the American Wind Energy Association, recently came out with a chart using data from the U.S. Energy Information Administration showing wind as the most cost-effective way for the country to meet compliance with the Clean Power Plan:

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Chart from the American Wind Energy Association, using data from the U.S. Energy Information Administration

In May, Energy Secretary Ernest Moniz released a report calling on the nation to “unlock the vast potential for wind energy deployment in all 50 states,” highlighting technical advancements to greatly expand the areas of the country where wind turbines can be used. The agency called for taller turbines with larger rotors.

Little more than two weeks ago, the Deparment of Energy released a report calling wind power “a key component of the President’s all-of-the-above energy strategy and Clean Power Plan.”

RELATED: Groups say larger wind turbines bad news for birds

How much will the court decision striking down the 30-year exemption affect those goals?

Watchdog.org emailed DOE and the U.S. Department of the Interior, which oversees USFWS, but did not receive any responses to our questions.

Watchdog.org also emailed the American Wind Energy Association — an intervenor in the case — asking for reaction to the court ruling and what it could mean to the industry, but did not receive a response.

Robert Bryce, an energy journalist and author who has been a outspoken critic of the effectiveness of wind energy, said the ruling is a setback for the Obama administration.

“The rationale being used by renewable-energy promoters and the Obama administration is that future climate change trumps today’s wildlife concerns,” Bryce wrote in an opinion piece in the Wall Street Journal. “Therefore, we have to kill lots of birds and bats with turbines to save them from the possibility of climate change. Never mind that whatever carbon-dioxide cuts we achieve will be swamped by soaring emissions growth in places like Brazil, India and Indonesia.”

Hutchins said American Bird Conservancy “reluctantly undertook” the lawsuit as a way to protect birds and bats.

“We’re very happy to have wind farms, along with other forms of alternative energy like solar to address anthropogenic climate change,” Hutchins said. “But we want it done right … That means putting (wind farms) in the right places, not putting them in major migratory routes or sensitive habitats.”

Hutchins complains his organization has had a hard time determining what’s been euphemistically called “avian mortality” at wind farms.

After filing a Freedom of Information Act request to U.S. Fish and Wildlife, Hutchins said the agency reported 11 eagles had been killed in 2013, 2014 and the first half of 2015.

But citing reports that an average of 67 golden eagles a year are killed at the Altamont Pass Wind Resource Area in California and a settlement with PacificCorp Energy over the deaths of 38 golden eagles and 336 other protected birds, Hutchins said, “We don’t think anyone really knows how many eagles are killed at wind energy facilities.”

“Only about 2.8 birds per wind-powered megawatt are lost annually as a result of U.S wind energy generation,” the American Wind Energy Association website reported. “That’s less than 200,000 birds per year based on current installed wind capacity, according to the most recent analysis of data from 109 post-construction studies performed at 71 facilities across the United States.”

Defenders of wind energy point to statistics showing the millions of birds killed by colliding with buildings, power lines, communication towers, oilfield production pits, cars and even cats.

Hutchins doesn’t deny those figures, but says, “When you add it all up, it’s cumulative” and believes some of the most common species of birds “are in precipitous decline.”

“Adding the effects of alternative energy on top of all that when it isn’t done properly, we have a problem with that,” Hutchins said. “We would like to see better regulation, better science applied to this. If we’re going to do alternative energy we shouldn’t do it in a way where we’re killing hundreds of thousands, if not millions, of birds and bats each year.”

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