Group plans lawsuit against Interior rule that ‘gambles recklessly’ with eagles

Source: Scott Streater, E&E reporter • Posted: Thursday, May 1, 2014

A leading bird conservation group has notified the Obama administration that it intends to sue over a rule for renewable energy projects that would permit injuring, killing or disturbing bald eagles for up to 30 years.

The American Bird Conservancy (ABC) today sent a notice of intent to sue to Interior Secretary Sally Jewell and Fish and Wildlife Service Director Dan Ashe saying the group plans to take legal action against the Interior Department and FWS over the revised eagle “take” rule announced in December 2013 and implemented earlier this year.ABC states in the eight-page notice of intent that the rule — which allows Fish and Wildlife to grant programmatic incidental take permits to wind farms, transmission projects and other long-term energy operations for a much longer period than the previous five-year term — is riddled with violations of federal law, including the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA) and the Bald and Golden Eagle Protection Act.

“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,” according to the notice filed on behalf of ABC by the Washington, D.C.-based public interest law firm of Meyer Glitzenstein & Crystal.

“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 safeguard eagles and other migratory birds.”

The group asserts in the notice that Fish and Wildlife adopted the rule “in the absence of any NEPA document or any consultation under Section 7 of the ESA,” marking it as “a glaring example of an agency action that gambles recklessly with the fate of the nation’s bald and golden eagle populations.”

ABC wants a court to throw out the rule “pending full compliance with federal environmental statutes,” according to a press release accompanying the notice.

“ABC has heard from thousands of citizens from across the country who are outraged that [FWS] wants to let the wind industry legally kill our country’s iconic Bald and Golden eagles,” Michael Hutchins, national coordinator of ABC’s Bird Smart Wind Energy Campaign, said in a statement. “The rule lacks a firm foundation in scientific justification and was generated without the benefit of a full assessment of its impacts on eagle populations.”

Laury Parramore, an FWS spokeswoman in Arlington, Va., said the agency cannot comment on pending litigation.

The notice of intent to sue is the latest in the ongoing debate over federal regulation of the wind industry and the impacts of the growing number of wind turbines on birds and bats.

The rule at issue in the notice of intent amends an eagle permitting program established in 2009 that initially allowed the five-year take permits only if the disturbing, harming or killing of eagles was unavoidable.

The take permits are only to be issued to applicants that commit to strict adaptive-management measures that include site-specific steps that reduce impacts to eagles. Fish and Wildlife would review the permits and the conservation measures every five years.

Groups including the National Audubon Society and Natural Resources Defense Council strongly opposed FWS’s decision to allow 30-year eagle take permits.

The National Audubon Society says it is considering following ABC’s lead and taking similar legal action.

“This is an eagle-killing rule that deserves to be challenged,” Mike Daulton, Audubon’s vice president for government relations, said in an emailed statement. “We strongly support the deployment of renewable energy, but reckless slaughter of eagles is not an option. We’re considering legal options of our own.”

ABC “made a decision to go it alone” with legal action because the group “feels very strongly about this issue,” said Robert Johns, a spokesman for the group.

“We’re losing many eagles a year,” Johns said.

What’s more, the federal government has filed only one criminal enforcement action involving bird-protection laws at a wind energy facility, entering a plea agreement last year with Duke Energy Corp. that involved fining the North Carolina-based energy giant $1 million for killing more than 150 migratory birds, including 14 golden eagles, at two Wyoming wind farms over the past few years (Greenwire, Nov. 25, 2013).

“We think that’s ridiculous,” Johns said.

The American Wind Energy Association has argued that the industry takes enormous steps to protect birds, more so than other industries, and that when it comes to eagles, the industry has been unfairly singled out. AWEA has pointed to studies that show eagle populations over the last 40 years have stabilized and that the wind power industry conducts more pre- and post-construction studies to guard against impacts to eagles and other sensitive avian species than any other energy sector.

Lindsay North, an AWEA spokeswoman, said the group would not comment on the ABC notice of intent to sue.

But the wind industry says such incidental take permits give it more regulatory certainty while allowing it to incorporate measures that help protect eagles. And the industry has argued that it makes no sense to not have an eagle permitting system that covers the typical 30-year life of an operating commercial-scale wind farm.

Ashe, the FWS director, told Greenwire last year that the permit should also help protect eagles by ensuring that wind power developments take proper steps to avoid affecting the iconic birds (Greenwire, Dec. 23, 2013).

But ABC states in the notice of intent to sue that the 30-year take rule “undermines the nation’s longstanding commitment to conservation of eagles” and that the group has no choice but to take legal action to “ensure that eagles, and the millions of Americans who enjoy and benefit from them, obtain the legal protections to which they are entitled under U.S. law.”