The Application of Migratory Bird Protection Statutes to Wind Power Projects

摘要

Wind energy opponents recently have begun to challenge federal approvals of wind energy projects on the basis that such approvals violate the Migratory Bird Treaty Act (MBTA) because the projects will almost inevitably harm migratory birds. The body of case law interpreting these challenges is small and rapidly developing. In addition, the U.S. Fish and Wildlife Service (USFWS) recently enforced the MBTA against a wind power project for the first time, creating a potential source of uncertainty for wind power developers. Under the MBTA it is "unlawful at any time, by any means or in any manner," to harm or kill a protected migratory bird unless specifically allowed by regulation.1 The list of birds protected under the MBTA includes nearly every type of bird native to the United States.2 Because the prohibitions under the MBTA are worded so broadly, and there is no current mechanism for a wind power project to obtain an incidental take permit under the MBTA, wind power projects will almost inevitably "violate" the MBTA under a literal reading of the statute. Wind power developers (as well as other entities engaged in otherwise lawful business that may incidentally harm migratory birds) rely on the prosecutorial discretion of USFWS to avoid the MBTA's potentially hefty criminal and civil penalties.