June 1, 2015

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Wide Reach Migratory Bird Treaty Act for Energy Projects

For nearly a century the Migratory Bird Treaty Act has been a tool used by the federal government to protect migratory bird species.[1]

Whether existing or newly constructed, energy projects of all types face risk of liability under the Act. This risk varies depending on factors such as the type of facility and location. Generally, risks can be high, given that the Act has been broadly interpreted to hold a facility owner or operator in violation even when they neither intended nor had knowledge of harm caused to a migratory bird by the facility.

Tensions between energy facilities and the Act’s goal of migratory bird protection are not new. However, with increases in energy projects, especially in wind and solar power generation facilities, conflicts with migratory birds have increased. The US Fish and Wildlife Service (USFWS) has become more aware of potential harms caused by energy projects and has been taking enforcement actions.

Given the broad liability under the Act, as described below, it is important that energy project developers and operators understand how the Act may apply to their facility and how to minimize potential liability risks through use of avoidance and mitigation measures.

Potential Liability Under the Act is Broad

The purpose of the Act is to implement various international treaties requiring protection of migratory bird species. More than 1,000 bird species are currently protected by the Act, including more prevalent species, such as doves, pigeons, and sparrows, as well as other species, such as bald and golden eagles, falcons, and flamingos.[2]

Under the Act, unless authorized by regulation or a permit, it is “unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture…any migratory bird, any part, nest, or egg of any such bird or any part, nest, or egg thereof.”[3] The USFWS regulations broadly define a “take” as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.”[4]

Liability under the Act is strict, meaning that proof of intent or knowledge causing the taking of a migratory bird is not needed to establish a violation of the Act. The strict liability standard has been applied to various types of activities directly or indirectly, intentionally or unintentionally impacting migratory birds. While some courts have held that the Act’s reach is limited to the types of activities performed by hunters and poachers, other courts have held that the Act reaches all types of activities, even those that only incidentally cause the death of birds.[5]

For example, in United States v. Brigham Oil & Gas, a federal district in North Dakota concluded that certain oil and gas companies were not liable for migratory bird deaths caused by reserve pits at their drilling sites.[6]  The court interpreted the Act to require some conduct directed at birds and found that acts or omissions having merely incidental impacts on birds are insufficient to constitute a violation of the Act. As the court explained, to extend the Act to unintentional activities could lead to absurd results, such as holding a private citizen liable under the Act for driving a car that collides with a migratory bird or holding the owner of a house cat liable for the cat’s catch of the day.

But there are also cases that go the other way. For example, the court in United States v. Citco Petroleum Corp. found a refinery operator liable for migratory bird deaths caused by open-air oil tanks at its petroleum refinery in Texas.[7] In addition, in United States v. Moon Lake Electric Association, the federal district court in Colorado concluded that a rural electrical distribution cooperative that failed to install inexpensive bird guards was liable for unintentionally taking migratory birds electrocuted by its facility.[8]

In many cases, even those involving unintentional acts, courts have held that there must be proximate cause, i.e., the injury caused must have been reasonably anticipated or foreseen as a natural consequence of the activity. The court in United States v. Apollo Energies concluded that an oil producer violated the Act when migratory birds were discovered dead inside pieces of its oil drilling equipment following notice by the USFWS that migratory birds were getting trapped and killed in such drilling equipment.[9] By comparison, bird deaths by the drilling equipment prior to the USFWS notice were not violations of the Act, because the court found that it was not foreseeable that the equipment would cause bird deaths until the USFWS notice was provided.

Because the Act has been applied to find some oil and gas and energy companies liable for indirect and unintentional takes, all developers and operators should be aware of the risks.

Potential Penalties and Criminal Convictions

Violations of the Act may result in civil or criminal penalties. An unintentional violation of the Act is a misdemeanor offense, punishable by up to $15,000 in fines, six months imprisonment, or both.[10] A knowing violation of the Act for purposes of selling bird parts is a felony, punishable by up to $2,000 in fines, two years imprisonment, or both.[11]

In 2013, the Department of Justice initiated the first criminal conviction for bird takes at a wind facility. In this criminal prosecution, Duke Energy Renewables entered into a plea agreement, agreeing to pay fines and restitution totaling $1 million in connection with deaths of migratory birds, including golden eagles, caused by certain Duke Energy wind farms in Wyoming.[12] Duke Energy was also obligated to implement an environmental compliance program for five years, at the cost of $600,000 per year, to reduce bird deaths at its four commercial wind projects in Wyoming. Among other steps, Duke Energy has worked to install radar technology to detect eagles near the wind projects and has curtailed turbines during high eagle flight activity to reduce the likelihood of bird injuries.

After this first conviction, another followed. In December of 2014, PacifiCorp Energy pled guilty to violations of the Act for the deaths of migratory birds, including eagles, at two wind farms in Wyoming.[13] PacifiCorp agreed to pay a total of $2.5 million in fines, restitution, and community services. Like Duke Energy, PacifiCorp was obligated to implement an environmental compliance program for five years.

In both convictions, the federal government found that the companies had failed to make all reasonable efforts to build projects in such a way as to avoid risks of bird deaths by collisions with turbines. With these cases, other convictions in the wind industry may follow. Therefore, it is important that wind developers consider how to reduce the potential for collisions and other impacts at wind facilities.

Similarly, developers of other energy projects, such as solar facilities that also negatively impact birds, should be similarly alert to risk avoidance methods. Risk avoidance and mitigation measures are discussed further below.

Narrow Authorized Takes Under the Act

There is no general authorization for takes; the Act authorizes certain limited takes in two ways: (1) the Act sets forth limited exceptions and (2) the Act provides that USFWS may issue permits for takes by certain types of activities. The best way to avoid potential liability under the Act is to ensure that your activity is within an exception to the Act or to obtain a permit. However, energy projects will rarely, if ever, meet an exception or qualify for a permit.

For instance, exceptions under the Act may apply to employees of certain public and private institutions or to licensed veterinarians stabilizing or euthanizing injured migratory birds. If an exception applies, one may take migratory birds without a permit.[14]

Permits issued under the Act are very specific, allowing takes for narrow purposes, such as for falconry, scientific collecting, and educational purposes. In total, there are 11 categories of migratory bird take permits, none of which would likely apply to energy projects, though developers should review the permit categories.[15]

How to Avoid Liability

While the exceptions and permits under the Act will not likely apply to energy projects, there are other ways that developers and operators could reduce potential liability under the Act. The degree of liability risks at energy projects depends on factors such as the type of activity, location, season, weather conditions, and types of birds potentially present. Correspondingly, avoidance and mitigation methods vary based on these factors as well.

When selecting avoidance and mitigation methods, developers and operators should be aware of the potential causes of migratory bird takings.

For wind farms, causes may be the following:

  • Collision with wind turbines
  • Collision with equipment, such as meteorological towers
  • Collision with associated power facilities
  • Habitat loss, disturbance, or fragmentation; or breeding disruption

For solar facilities, causes may be the following:

  • Collision with solar panels and mirrors
  • Exposure to elevated levels of solar flux
  • Collision with associated power facilities
  • Habitat loss, disturbance, or fragmentation; or breeding disruption

For transmission lines, causes may be the following:

  • Collision with power lines and poles
  • Electrocution
  • Collision with associated power facilities
  • Habitat loss, disturbance, or fragmentation; or breeding disruption

The USFWS encourages energy project developers and operators to work with the USFWS to develop avoidance or mitigation measures at all stages of a project. For wind facilities, for example, the USFWS issued guidance in 2012, known as the Land-Based Wind Energy Guidelines, which provides a tiered approach to evaluate sites and potential impacts and encourages voluntary consultation with the USFWS.[16] As another example, the Avian Power Line Interaction Committee (APLIC) issued a revised practice manual in 2012, providing guidance for power lines to avoid impacts on birds.[17]

For new projects, avoidance measures may entail consideration of options, such as, during which season to construct the project, where to site it, and how to design and configure it to minimize potential impacts on birds. For existing projects, the developer may consider how to make the site less attractive to migratory birds and their prey. In addition, measures for new or existing facilities may involve implementation of best-management practices to reduce risks of harm. For example, would it be feasible to perform construction or modifications outside of breeding season; situate the project in already altered areas, such as farmlands, and away from sensitive habitat areas; install markings on power lines and poles or increase the diameter or reconfigure the lines to increase visibility; or curtail wind turbines during times of high flight activity?[18]

As a mitigation tool, for instance, the developer may agree to establish protected areas sometimes referred to as mitigation banks to offset habitat losses caused by facilities. This offset measure is similar to wetland mitigation banks, authorized by the Environmental Protection Agency’s regulations pursuant to the Clean Water Act.

In the context of the Land-Based Wind Energy Guidelines, the USFWS explained that while it is not possible to relieve a company of obligations to comply with the Act, the USFWS may exercise enforcement discretion where developers and operators are taking reasonable and effective measures to avoid migratory bird takes.[19] Accordingly, although one should never expect or rely on enforcement discretion, liability may be minimized by implementing reasonable avoidance measures, which may be identified by reference to guidance issued by the USFWS, the APLIC, or other agencies or organizations, or by consultation with the USFWS.

Future Liability Relief?

Supposedly, the USFWS is considering establishing a permitting scheme for incidental takings of migratory birds.[20] However, it is unknown whether this possible permitting scheme would cover the types of activities associated with energy projects and whether the USFWS will ultimately proceed with this concept. Thus, for the time being, given the breadth of the Act and the expansive interpretation of the Act by the USFWS and various courts, liability risks remain.

For energy projects, assuming exceptions and permits do not apply, companies may reduce risks by implementing reasonable and effective avoidance and mitigation measures.

[1] The Migratory Bird Treaty Act was enacted in 1918 (July 3, 1918, 16 U.S.C. § 703 et seq., Ch. 128, 40 Stat. 755).
[2] All 1,026 protected species are listed in the U.S. Fish and Wildlife Service regulations at 50 C.F.R. § 10.13.
[3] 16 U.S.C. § 703(a)
[4] 50 C.F.R. § 10.12
[5] U.S. v. CITGO Petroleum Corp., 893 F. Supp. 2d 841, 843 (S.D. Tex. 2012)
[6] 840 F. Supp. 2d 1202 (D.N.D. 2012).
[7] 893 F. Supp. 2d 841 (S.D. Tex. 2012).
[8] 45 F. Supp. 2d 1070 (D. Colo. 1999)
[9] 611 F.3d 679 (10th Cir. 2010).
[10] 16 U.S.C. § 707(a)
[11] 16 U.S.C. § 707(b)
[12] Duke Energy. (2013, November 22).  Duke Energy Renewables reaches agreement with Department of Justice regarding bird mortalities at two wind facilities. (Press Release); US Department of Justice. (2013, November 22). Utility company sentenced in Wyoming for killing protected birds at wind projects. (Press Release).
[13] PacifiCorp Energy. (2014, December 19). PacifiCorp settles with federal government over migratory birds. (Press Release); US Department of Justice. (2014, December 19). Utility company sentenced in Wyoming for killing protected birds at wind projects. (Press Release).
[14] 50 C.F.R. § 21.12-21.15.
[15] 50 C.F.R. Part 21.
[16] USFWS. (2012, March 12). Final land-based wind energy guidelines.
[17] APLIC. (2012). Reducing avian collisions with power lines: The state of the art in 2012.  Washington, DC: Edison Electric Institute and APLIC.; see also APLIC and USFWS. (2005. April). Avian Protection Plan Guidelines.
[18] USFWS. (2012, March 12). Final land-based wind energy guidelines.; APLIC. (2012). Reducing avian collisions with power lines: The state of the art in 2012.  Washington, DC: Edison Electric Institute and APLIC
[19] USFWS Final Land-Based Wind Energy Guidelines at p. 6.
[20]Taylor, Phil. (2015, February 13). FWS considers permitting for unintentional bird kills. E&E Publications. Retrieved from  http://www.eenews.net/stories/1060013481.