Bird conservation group to challenge rule allowing wind farms to kill eagles

The American Bird Conservancy has announced its intention to file suit against the Department of Interior for promulgating a regulation that authorizes the granting of 30-year permits for the taking of eagles by wind farms and electricity transmission projects.  Here is ABC’s release and notice of intent to sue.

Under federal law, it is illegal to “take” protected species unless one obtains an “incidental take permit” from the federal government.  The Interior Department rule, finalized in December, extends the maximum time period for which such permits can be granted from 5 to 30 years.  ABC calls the regulation the “FWS 30-year Eagle Kill Rule.” ABC claims the rule lacks a sufficient scientific foundation and that Interior failed to comply with applicable environmental statutes in promulgating the rule.  From the NOI letter:

this major rule change – which will apply to industrial activities of all kinds that incidentally take eagles but, as acknowledged by the Service, was promulgated specifically to respond to the wind power industry’s desire to facilitate the expansion of wind power projects in occupied eagle habitat, id. at 73709 – was adopted in violation of several federal wildlife protection and environmental laws, including the National Environmental Policy Act, 42 U.S.C. §§ 4321-437 (“NEPA”), the Endangered Species Act, 16 U.S.C. §§ 1531-1544 (“ESA”), and the Bald and Golden Eagle Protection Act, 16 U.S.C. §§ 668-668d (“BGEPA”). Consequently, ABC is initiating legal action in order to have the rule invalidated pending full compliance with federal statutes that are designed to ensure that the environmental impacts of, and alternatives to, agency actions are thoroughly analyzed before those actions are implemented.

ABC strongly supports wind power and other renewable energy projects when those projects are located in an appropriate, wildlife-friendly manner and when the impacts on birds and other wildlife have been conscientiously considered and addressed before irreversible actions are undertaken. On the other hand, when decisions regarding such projects are made precipitously and without compliance with elementary legal safeguards designed to ensure that our nation’s invaluable trust resources are not placed at risk, ABC will take appropriate action to protect eagles and other migratory birds. The 30-year eagle permit rule – adopted in the absence of any NEPA document or any consultation under section 7 of the ESA, 16 U.S.C. § 1536, and in a manner that subverts the fundamental eagle protection purpose of BGEPA – is a glaring example of an agency action that gambles recklessly with the fate of the nation’s bald and golden eagle populations.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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