Approving Wind Turbines Does Not Make Federal Agency Liable For Bird Deaths

Thursday, August 30, 2018 7:53 am
August 2018 - Volume 46 Number 8

The Ninth Circuit rejected environmentalists' novel argument that a federal agency could be liable for ''taking'' protected birds merely by granting a right-of-way to build and operate wind turbines.

Facts: The Bureau of Land Management (BLM) granted to Tule Wind, LLC a right-of-way to build and operate about 150 wind turbines on federal land in San Diego County, California. The BLM approved the grant after conducting an environmental impact statement, obtaining modifications to the original wind project, and conditioning the grant on numerous mitigation and monitoring requirements.

These conditions included a project-specific avian and bat Protection Plan, which Tule developed in conjunction with the BLM and the U.S. Fish and Wildlife Service, the agency that enforces two bird-related laws, the Migratory Bird Treaty Act (Bird Act) and the Bald and Golden Eagle Protection Act (Eagle Act). The Protection Plan requires continuous monitoring and inspection of the wind project's impacts on bird and bat species. The Fish and Wildlife Service endorsed the plan as appropriate for avoiding and minimizing the ''take'' (i.e., killing) of migratory birds, bats, an[..]