Golden Eagles and Industrial Wind: Justice Served (cats, windows not applicable)

From MasterResource

By Robert Bradley Jr. — April 18, 2022

“ESI further acknowledged that at least 150 bald and golden eagles have died in total since 2012, across 50 of its 154 wind energy facilities. 136 of those deaths have been affirmatively determined to be attributable to the eagle being struck by a wind turbine blade.” (Justice Department, April 5, 2022)

For decades, the American Wind Energy Association (now part of the American Clean Power Association) has dismissed the “avian mortality problem” as little different than everyday deaths of birds from cats and windows. The Sierra Club echoes this argument in ground-zero wind growth states such as Michigan.

There are two problems with this argument. First, millions of deaths annually from wind blades is that amount too many given that wind power is uneconomic and unnecessary. Taxpayers and birds can be spared with a gain in resource efficiency. (And imagine if an oil, gas, or coal company tried to make that argument ….)

Second, it is an open secret was that golden eagles are the particular victims of industrial wind, which inspired a Sierra Club official to dub the technology the “Cuisinarts of the Air.” Six months ago, the National Audubon Society sued Alameda County for permitting an 80-MW wind project near San Francisco on these grounds:

Alameda County approved a poorly planned project that they know will kill Golden Eagles and other birds in violation of state and federal laws and that will contribute to the continuing declines of Golden Eagles and other sensitive species….

[This] area is also home to the largest wind resource area in the United States, where 5000 turbines were built over a 56-square-mile area in the early 1980s without any environmental mitigation. For decades, the Altamont Pass has killed so many Golden Eagles that it is a ‘population sink’ for the species and is contributing to its overall decline in the region.

The avian mortality story has been long chronicled at MasterResource by Jim Weigand (and others) in such posts as:

Bald Eagle ‘Takings’: Biden’s Interior Department Protects Big Wind (Jim Wiegand: March 2, 2022)

AWEA’s Eagle Mortality Defense: A Response (Jim Wiegand: August 31, 2015)

Australian Avian Mortality: The Cover-Up (Mark Duchamp: June 4, 2015)

Hiding “Avian Mortality”: Where ‘Green’ is Red (Part I: Altamont Pass) (Jim Wiegand: September 4, 2013)

Hiding Avian Mortality: Where ‘Green’ is Red (Part II: Wolfe Island) (Jim Wiegand: September 13, 2013)

Big Wind & Avian Mortality (Part I: Problem Identification) (Jim Wiegand: March 14, 2013)

Big Wind & Avian Mortality (Part II: Hiding the Problem) (Jim Wiegand: March 15, 2013)

Shame on Big Wind for the open carnage behind a green facade. Shame on Big Environmental for the green pass. And this avian mortality is joined by wind turbines’ negative health effects on nearly residents, as well as the energy sprawl of service roads and long-line transmission–again, all unnecessary.

And thus the joke:

“When is an environmentalist not an environmentalist? … When it comes to windpower.”

—————-

Here is the U.S. Department of Justice Press Release (April 5, 2022), fingering NextEra Energy Resources, self-described as “a diversified clean energy company.”

ESI Energy LLC, Wholly Owned Subsidiary of Nextera Energy Resources LLC, is Sentenced After Pleading Guilty to Killing and Wounding Eagles in Its Wind Energy Operations, in Violation of the Migratory Bird Treaty Act

ESI Energy Inc. (ESI) was sentenced today in Cheyenne, Wyoming, for violations of the Migratory Bird Treaty Act (MBTA), announced Assistant Attorney General Todd Kim for the Justice Department’s Environment and Natural Resources Division and U.S. Attorney L. Robert Murray for the District of Wyoming.

ESI is a wholly owned subsidiary of NextEra Energy Resources LLC, which in turn is a wholly owned subsidiary of NextEra Energy Inc. ESI owns other companies, many of which operate wind energy generation facilities throughout the United States, including in Wyoming, New Mexico, Arizona, California, Colorado, Illinois, North Dakota and Michigan, as well as other states.

ESI pled guilty to three counts of violating the MBTA, each based on the documented deaths of golden eagles due to blunt force trauma from being struck by a wind turbine blade at a particular facility in Wyoming or New Mexico, where ESI had not applied for the necessary permits.

ESI further acknowledged that at least 150 bald and golden eagles have died in total since 2012, across 50 of its 154 wind energy facilities. 136 of those deaths have been affirmatively determined to be attributable to the eagle being struck by a wind turbine blade.

The court sentenced ESI, pursuant to a plea agreement, to a fine of $1,861,600, restitution in the amount of $6,210,991, and a five-year period of probation during which it must follow an Eagle Management Plan (EMP). The EMP requires implementation of up to $27 million (during the period of probation; more thereafter if a written extension is signed) of measures intended to minimize additional eagle deaths and injuries, and payment of compensatory mitigation for future eagle deaths and injuries of $29,623 per bald or golden eagle. 

ESI also must over the next 36 months apply for permits for any unavoidable take of eagles at each of 50 of its facilities where take is documented or, in the case of four facilities not yet operational, predicted.

“The Justice Department will enforce the nation’s wildlife laws to promote Congress’s purposes, including ensuring sustainable populations of bald and golden eagles, and to promote fair competition for companies that comply,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division. “For more than a decade, ESI has violated those laws, taking eagles without obtaining or even seeking the necessary permit. We are pleased to see ESI now commit to seeking such permits and ultimately ceasing such violations.” 

“Wyoming is graced with abundant natural resources – including both eagles and strong winds,” said U.S. Attorney L. Robert Murray for the District of Wyoming. “The sentencing today shows our commitment to both maintaining and making sustainable use of our resources. It also ensures a level playing field for business in Wyoming and ensures those receiving federal tax credits are complying with federal law.”

“The U.S. Fish and Wildlife Service (USFWS) has a long history of working closely with the wind power industry to identify best practices in avoiding and minimizing the impacts of land-based wind energy facilities on wildlife, including eagles,” said Edward Grace, Assistant Director of the USFWS’ Office of Law Enforcement. “This agreement holds ESI and its affiliates accountable for years of unwillingness to work cooperatively with the Service and their blatant disregard of wildlife laws, and finally marks a path forward for the benefit of eagles and other wildlife resources entrusted to the Service’s stewardship.” 

“This prosecution and the restitution it secures will protect the ecologically vital and majestic natural resources of our bald eagle and golden eagle populations,” said U.S. Attorney Phillip A. Talbert for the Eastern District of California. “California has been awarded more than $4.6 million in restitution under this plea agreement for the deaths of at least 92 eagles within the state caused by the defendant and affiliated companies.”

The MBTA prohibits the “taking” of migratory birds, including bald and golden eagles, without a permit from the U.S. Fish and Wildlife Service of the Department of the Interior. “Take” is defined by regulation to mean “to pursue, hunt, shoot, wound, kill, trap, capture or collect” or to attempt to do so.

Bald and golden eagles are also protected under the Bald and Golden Eagle Protection Act (the Eagle Act) which, like the MBTA, prohibits killing and wounding eagles without a permit from USFWS. USFWS is authorized to issue such eagle take permits (ETPs) only where: (1) the predicted take is compatible with the preservation of bald and golden eagles; (2) it is necessary to protect an interest in a particular locality; (3) the take is associated with, but not the purpose of, the activity; and (4) the take could not practicably be avoided. Permit applicants are required to avoid and minimize take to the maximum extent practicable, and to pay compensatory mitigation for unavoidable takes.

According to documents filed in court, it is the government’s position that ESI’s conduct violated both the Eagle Act and the MBTA, but the government accepted the company’s guilty plea to only MBTA counts due in large part to ESI’s agreement to apply for permits at 50 facilities and its prior efforts to minimize and mitigate for eagle fatalities.

ESI’s and its affiliated companies’ actions in Wyoming and New Mexico were taken under an admitted nationwide posture and alleged corporate policy of not applying for ETPs.

According to the information filed in this case:

• ESI and its affiliates deliberately elected not to apply for or obtain any ETP intended to ensure the preservation of bald and golden eagles, and instead chose to construct and operate facilities it knew would take eagles, and in fact took eagles, without any permits authorizing that take.
• Because ESI did not seek any ETPs, it avoided any immediate federal obligation to avoid and minimize eagle take to the maximum degree practicable and to pay for compensatory mitigation for the eagle deaths.
• Because some other wind energy companies (1) altered proposed operations as required to avoid and minimize take levels to the maximum degree practicable, (2) applied for ETPs, (3) obtained ETPs that in some cases were impacted by take levels caused by ESI’s unpermitted facilities, and/or (4) paid mitigation for eagle takings, ESI, by not doing these things, gained a competitive advantage relative to those wind energy companies.
• ESI and its affiliates began commercial operations at new facilities on a schedule intended to meet, among other things, power purchase agreement commitments and qualifying deadlines for particular tax credit rates for renewable energy, and with production amounts not impacted by avoidance and minimization measures that might have been required under an eagle take permit. ESI and its affiliates received hundreds of millions of dollars in federal tax credits for generating electricity from wind power at facilities that it operated, knowing that multiple eagles would be killed and wounded without legal authorization, and without, in most instances, paying restitution or compensatory mitigation….

This case was investigated by the U.S. Fish and Wildlife Service Office of Law Enforcement. The prosecutions were handled by the Environmental Crimes Section of the Justice Department’s Environment and Natural Resources Division with assistance from the U.S. Attorneys’ Offices for the Eastern District of California, the District of Wyoming and the Northern District of California.

Conclusion

The Michigan chapter of the Sierra Club states, “Wind turbines can be removed when something better comes along.” To which true environmentalists can add: we can’t wait that long.