For the Birds: Wind Energy, Dead Eagles, and Unwelcome Surprises

Wind energy projects impact bald and golden eagle populations. These impacts, including the serious injury and death of eagles from collisions with spinning wind turbines, implicate a host of federal and state environmental laws. Chief among these laws are the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act (BGEPA), both of which impose strict liability for injuries to eagles even where the injury is an incidental result of the activity that caused it. Unfortunately for both eagles and wind developers, bird deaths are an unavoidable consequence of wind energy development. The focus of the article is on the BGEPA’s Eagle Permit Rule, passed in 2009, which purports to offer protections for wind developers for permitted incidental takes of eagles. The article points out several aspects of this permitting regime that work to hinder the development of renewable energy in a time of global warming and suggests specific changes to the rule, modeled on the Endangered Species Act’s incidental take permit process, that would better balance the important priorities of eagle protection and renewable energy development.