Tilting at Turbines: Implications of the First Wind Energy Prosecution under the Migratory Bird Treaty Act

Summary:  The Department of Justice recently prosecuted the first ever wind energy firm under the Migratory Bird Treaty Act. Wildlife advocates hailed the prosecution as a step in the right direction, but the outcome has no substantial effect on protecting migratory bird species. It is clear that if bird advocates wish to see reforms in the wind industry, they must partner with their foes to develop a solution.

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By Andrew Minikowski

While in college, I took an ornithology class. I was likely the only person in the room that wasn’t a biology student. One May morning our professor took us into the field to set up nets and band birds for the Fish & Wildlife Service. Most of our time was spent juggling disgruntled American Robins and Gray Catbirds, but at one point our professor detangled a Veery—a species of small thrush—from one of the nets. The bird was already banded, meaning it had previously been tagged for identification. In an extraordinary stroke of luck, this very Veery had been banded by our professor two years prior. In those two years, that Veery had migrated from New England to Brazil and back twice while I had spent those same years sitting in classrooms and reading trashy fantasy novels. While the students around me nodded in cold confirmation of this remarkable fact, I trembled from the depths of my soul: that Veery’s life was more eventful than my own. After being released, the bird flitted off into the erupting greenery of early spring to traverse great heights and soar above worlds my eyes would never gaze upon.

Since that morning, I have better understood why humans are so captivated by birds. They permeate art, music, literature, and the human imagination. Americans spend thousands of dollars every year luring birds into their backyards and gardens. Zealous birdwatchers will wake at unholy hours and drive vast distances just to catch a fleeting glimpse of a rare species. Undeniably, birds hold a special place in the human consciousness.

And humans are killing them in astounding numbers and at an astonishing rate.

To address the loss of migratory bird species, the Department of Justice brought the first criminal charges against a wind energy firm under the Migratory Bird Treaty Act (MBTA) in November 2013. Wildlife advocates were ecstatic. The wind industry—which was initially perceived as practically immune under MBTA—hung its head and the defendant, Duke Energy, turned out its pockets.

The prosecution seemingly appeared to be good news for birds and human enthusiasts alike. However, this prosecution was likely motivated by a desire to quiet political rumblings rather than a genuine desire to protect the more than 33,000 birds killed by wind turbines each year. Prior to the Duke Energy case, the Obama administration had been increasingly criticized—by advocates and industries alike—for its failure to prosecute the wind industry under MBTA. Originally enacted in 1918 to combat the Victorian Era’s restless trigger fingers and insatiable demand for elaborately plumed women’s hats, MBTA contains no prohibitions regarding wind turbines or other modern industries. Rather, the prosecution of industry under MBTA is the result of a broad interpretation of the statute’s language and the discretion of the Department of Justice. Regularly prosecuted industries, such as oil and pesticide companies, saw the failure to prosecute as a means of indirectly subsidizing the wind industry in order to promote the administration’s green energy objectives.

Duke Energy happily submitted to its one million dollar plea deal with the federal government. However, the last word was delivered by the Department of the Interior itself. A new regulation, issued a mere two weeks after the Duke Energy case, allows wind farms to secure thirty-year exemptions from the prohibitions of MBTA. Duke Energy arguably took one for the team, because after this new regulation the wind industry actually benefited.

The reality is that the wind industry doesn’t actually kill that many birds. In the competitive field of astronomical avian death tolls, wind turbines are, like Don Quixote’s windmills, certainly no giants. Rather, the laurels go to much more benign competitors. Collisions with windows kill up to 976 million birds annually. Perching on power lines shuffles 174 million birds off their mortal coils per year. Man’s best friend, the automobile, motors down an additional 60 million birds every year. Perhaps most shocking is the domesticated cat. Cats have been recorded killing up to 39 million birds annually in one state alone. Death by turbine kills a paltry 33,000. So overall, wind turbines account for but a mere drop in the avian Styx. On these numbers alone, avian advocates may find battling the powerful wind industry and the seemingly indifferent federal government to be an ineffective way of protecting migratory birds.

By advocating against the wind industry, wildlife advocates are essentially working to abet a significant threat to wildlife in general—climate change. Climate change will be far more cataclysmic to migratory birds than other current threats. Green energy technology and development, such as wind turbines, is a major factor that can eventually quell the continued combustion of fossil fuels. Avian advocates are ensuring that they lose the war, even if they win every battle.

Developing viable wind energy benefits both birds and humans and outweighs the minimal impact of wind turbines on bird populations. Promoting wind energy is a favored objective of the Obama administration and a large number of private citizens. Therefore, if advocates wish to be successful, they should not rely on the whims of our bureaucratic government to protect birds from wind turbines. Rather, advocates should rely on their own foe—the wind industry. Collaboration with the wind industry ensures the prevention of avian deaths and subsequent expensive prosecutions. Factoring migratory flyways and breeding and nesting habits of local species into wind farm siting will prevent exorbitant and unnecessary bird deaths. Implementing radar and other technologies could also reduce the number of deaths.

Despite the token Duke Energy prosecution, the growth of the wind industry in the United States will likely continue without much hindrance from MBTA. If wildlife advocates truly want to prevent bird deaths caused by the increasing number of turbines, they must collaborate with wind farms in order to integrate avian and green energy interests.

Andrew is a second-year Juris Doctor and Master of Environmental Law and Policy student at Vermont Law School. Prior to law school he studied English and Economics at Eastern Connecticut State University where he authored his thesis on Eastern Orthodox theology in Dostoevsky’s Crime and Punishment. Andrew is a Staff Editor on the Vermont Journal of Environmental Law and hopes to enter the field of natural resources law. In his unoccupied hours Andrew enjoys botanizing, birdwatching, backpacking, fishing, and reading in literature, poetry, and history.