When Accidents Lead to Federal Prosecution: The Unintentional Killings of Birds by Wind Turbines

Sarah D. Angress – With the increasing need for environmental sustainability, society has developed new technologies to better reduce humanity’s carbon footprint. Yet, these new advances in energy technology can have a negative impact on another aspect of the environment—wildlife. Since the 1990s, when the U.S. federal government implemented incentives to help reduce the cost of wind turbines, there has been a significant increase in electricity generation from wind (growing from less than 1% in 1990 to about 8.4% in 2020). However, with spin rates of up to 200 miles per hour, and with heights averaging 250 feet, wind turbines create an inherently dangerous obstacle for birds. On average, 681,000 birds in the U.S. are killed annually as a consequence of wind turbines. We are left in a very tough predicament—do we harm one aspect of our environment to protect another? Moreover, what risks do statutes protecting migratory birds and eagles pose to wind farming?

In 1918, the U.S. government enacted the Migratory Bird Treaty Act (MBTA) to protect and preserve populations of all migratory bird species. The MBTA prohibits killing protected migratory bird species without prior authorization. In the 1940s, the U.S. government enacted the Bald and Golden Eagle Protection Act (Eagle Act), which prohibits killing bald or golden eagles without a permit. These two acts were adopted in response to declining eagle populations caused by over poaching. While the deaths of birds from collisions with wind turbines was not the harm these acts were enacted to protect against, the large number of bird deaths as a result of collisions with wind turbines has prompted the U.S. government to apply the MBTA and Eagle Act to wind turbine operators.

In 2013, the U.S. government pursued its first-ever prosecution for an MBTA violation caused by commercial wind turbines. Duke Energy Corporation (Duke) was charged with violating the MBTA after dozens of protected birds, including 14 golden eagles, fatally collided with wind turbine blades. Duke pleaded guilty and was subject to a five-year probation period, $1,000,000 in fines, restitution, community service, and was required to spend up to $600,000 annually on development and migratory bird compliance plans. Although golden eagles were among the protected birds that collided with the turbines, the U.S. government agreed to only prosecute Duke under the MBTA and not the Eagle Act in exchange for Duke pleading guilty to the MBTA violation.

The impact of this more expansive reading and enforcement of the MBTA has important implications not only for the energy industry but for other industries in which equipment may create obstacles for birds, such as airlines and trucking. For instance, the airline industry is responsible for killing more than 9,000 birds annually. While the number of bird deaths connected to commercial airplane travel is substantially smaller than from wind turbines, the number for airlines is rising every year. Additionally, more than a billion birds are killed each year as a result of colliding with trucks and cars. However, the U.S. government has not prosecuted businesses in these other industries for violations of the MBTA or Eagle Act, which may raise concern that wind turbine operators are being more closely monitored for potential MBTA violations.

While efforts are being made to combat these accidental deaths of birds, such as painting the wind turbine blades black, there hasn’t yet been any technological breakthrough that can substantially cut down the number of dead birds. Moreover, this past January (2021), the U.S. Fish and Wildlife Service clarified that unintentional deaths of migratory birds are not prohibited under the MBTA. Yet, it is still unclear from the federal government about whether criminal charges are still on the table. This uncertainty surrounding potential liabilities for wind turbine operators can pose operational challenges for wind farming and can disrupt the industry altogether.

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