In the latest legal wrangling over the long-delayed Cape Wind Associates’ wind farm off Nantucket, during oral argument judges on the DC Circuit suggested that by permitting the wind farm, the US might be aiding and abetting violations of the Migratory Bird Treaty Act. Whatever the outcome of the particular case, the comments may be an indication that the decision will have an impact on the scope of the MBTA, which, as we have reported, has already produced a split among the circuits.

The Cape Wind offshore wind farm has been the subject of state and federal agency and court challenges for well over a decade, and the process has produced numerous studies of the potential impacts of the project. The latest challenge involves consolidated challenges from four different lawsuits that had been dismissed by the district court.

The appellant environmental groups alleged, inter alia, that migratory bird mortality from the operation of the facility was a certainty, not speculation. They argued that the project required an MBTA permit from the Fish and Wildlife Service, which would entail mitigation requirements. According to the Law360 account, that argument led to the comments from the court, which also included a description of the permit issuance as akin to handing the company a rifle with orders to shoot the animals. The US apparently did not contest that mortality would result, but the attorney for Cape Wind argued that a permit would be required only if the entity directly killed the birds. Implicit in that argument is that the MBTA would require an intentional killing, not mortality incidental to an otherwise lawful activity - or to an agency issuing a permit for that activity.

The FWS is currently considering establishment of an incidental take program under the MBTA. If the MBTA requires specific intent to kill, there may not be a need for such a program. However, if knowledge that the activity is certain to result in some bird mortality is sufficient to establish a violation, a company would be well-advised to avoid the risk and obtain the permit. On the other side, however, that interpretation of the MBTA would easily extend to bird mortality resulting from building collisions, a nightmare for enforcement policy. This remains an area that needs to be watched carefully, particularly by those in the renewable energy area.