David Ganje: Eagle Deaths
Which came first, the eagle or the modern wind turbine?
In 2022 based on the death of eagles caused by its wind turbines, a large wind farm operator in the US pled guilty in a Wyoming court to criminal charges for the Unlawful Take of Migratory Birds Act under federal law.
In a filed statement of facts in the criminal case the wind farm defendant acknowledged that approximately 150 eagles have died since 2012 at 50 of defendant's wind power facilities. Birds were killed in eight states. The blades on modern wind turbines can move at speeds of up to 200 miles per hour.
No court trial or jury trial was held in this case. The company voluntarily pled guilty. The defendant was placed on unsupervised probation for 60 months. The wind farm operator was ordered to pay over $8 million in fines and restitution.
As a part of the sentence the operator was also ordered to implement a written Eagle Management Plan ("EMP"). The purpose of the EMP is to avoid and minimize eagle mortalities.
The company had a policy of not applying for eagle take permits. Following the sentencing of the company, the company stated it did not seek permits because it believed the law did not require permits regarding unintentional bird deaths.
Yet in 2020 before the criminal charges were filed, a federal court in New York had ruled in another case that the Act does not just cover the intentional killing of migratory birds. And after this New York court decision the US Fish and Wildlife wrote a ‘new’ rule stating that violations of the Act applied only to intentional actions directed at migratory birds.
Now let us consider that courts and the government are not always right. I know. I have worked for the government. Did the wind farm company challenge any ambiguity in the law? What was the legal argument the company asserted to the court after it was criminally charged? If it had a good legal argument did the company submit the argument to the court as a defense? It did not. Did the company request a trial in this case to put its argument on the record? It did not.
After entering a written stipulation of facts, the president of the wind farm stated she disagreed with the government’s enforcement action arguing that things such as driving a car or flying an airplane might cause possible accidental bird collisions. The president further stated the wind farm company has never taken any action in disregard of federal law.
The suggestion is that the killing of the birds by wind turbines was either accidental or unintentional. Why then did not the president of the company direct her lawyers to fight the criminal charges? The company has a good number of lawyers. They do what they do very well. I know, I have sat across the table from them.
If the bird deaths were accidental there might be several defenses such as no intent to do harm, or that the actions were not culpable, or that the party was acting lawfully at the time. Nevertheless, the wind farm and the prosecutor entered into a plea agreement. The defendant did not choose to exercise its rights to a trial.
David Ganje is an attorney who practices natural resources, environmental and commercial law. Contact him at lexenergy.net.