Mikael Wärnsby Sofia Waadeland Grönesjö April 13 2015 Wind power – deliberate killing of wild birds? Advokatfirman Lindahl | Environment & Climate Change - Sweden Mikael Wärnsby, Sofia Waadeland Grönesjö Environment & Climate Change EU case lawCommission guidelinesCase lawCommentThe Land and Environment Court of Appeal recently tried two cases concerning the interpretation of the EU Directive on the Conservation of Wild Birds (2009/147/EC, November 30 2009). Both cases concerned the construction of wind turbines in areas where birds protected under the directive (white-tailed eagles, red kites and rough-legged buzzards) live and breed. The central question was whether the construction of the wind turbines should be considered to be the deliberate killing of these birds and therefore prohibited.EU case lawArticle 5(a) of the birds directive stipulates that member states must take the requisite measures to establish a general system of protection for all species of bird referred to in Article 1, prohibiting – among other things – deliberate killing or capture by any method. Accordingly, Swedish law prohibits the deliberate killing and capture of wild birds. The European Court of Justice (ECJ) has not yet ruled on the meaning of 'deliberate' in the context of Article 5. However, the wording used was the same in Article 12 of the EU Directive on the Conservation of Natural Habitats and Wild Fauna and Flora (92/43, May 21 1992), and on two occasions when the ECJ had to define whether an action was deliberate in the sense of the habitats directive (C-103/00 and C-221/04).In the first case (C-103/00, Caretta Caretta, concerning wild turtles in Greece), the court held that the use of mopeds on the beach and the presence of pedalos and small boats in the sea around the area constituted the deliberate disturbance of the turtles during their breeding season. Moreover, the acts were not found to be isolated occurrences. Thus, the court found that Greece had failed to take the required measures to prevent the deliberate disturbance of the turtles.The second case (C-221/04) concerned authorisation by the Spanish government to hunt foxes by setting stopped snares. The commission objected that the area where the hunting method had been authorised contained species protected by the habitat directive, particularly otters. The court stated that according to Article 12(1)(a), for 'deliberate' action to be met it must be proven that the capture or killing of a specimen belonging to a protected animal species was intended or that the possibility of such capture or killing was an accepted possibility. In this case, the court found it to be common ground that the contested permit related to fox hunting. Accordingly, the permit in itself did not intend to allow for the capture of otters. Further, the court found that the presence of otters in the area had not been formally proven, so that it had not been established that by issuing the contested fox hunting permit the Spanish authorities had known that that otters were at risk. Thus, the criteria that the killing or capturing must be deliberate had not been met.Commission guidelinesThe European Commission has issued a guidance document on the strict protection of animal species of community interest under the habitats directive. Based on the court's approach in Cases C-103/00 and C-221/04, the commission concluded that the following definition of 'deliberate' can be proposed:"'Deliberate' actions are to be understood as actions by a person who knows, in light of the relevant legislation that applies to the species involved, and the general information delivered to the public, that his action will most likely lead to an offence against a species, but intends this offence or, if not, consciously accepts the foreseeable result of his action."Case lawIn one of the Swedish cases, the appellant had applied for permission to construct and operate four wind turbines in southeast Sweden. The area of construction had a small presence of white-tailed eagles, red kites and rough-legged buzzards, all protected by the birds directive. A study had been made regarding the risk of these birds being killed by collision with the wind turbines. The study suggested that one white-tailed eagle would be killed every fifth year, one red kite every seventh year and one rough-legged buzzard every eighth year. However, without long-term studies on the effects of wind turbine construction on wild birds, the calculated numbers were considered to be rough estimates. The first-instance court emphasised that wind turbines would, to a certain degree, kill birds and found that the construction of turbines constituted deliberate killing of these birds, given that there was an increased risk of collision in the construction area compared to the country as a whole. Thus, with reference to the precautionary principle, the permit to construct the wind turbines was denied.The Land and Environment Court of Appeal reached a different conclusion. The court held that according to the environmental impact assessment, the risk of collision could be considered small, and that by constructing the turbines it was not the company's intent to kill birds. Moreover, the court found that there was no reason to believe that the company was indifferent to the risk of birds being killed by wind turbines. Accordingly, the court ruled that the company could not be said to kill the birds 'deliberately' by constructing the wind turbines. The same conclusion was drawn in another case on the same day. Thus, the applications were referred back to the permit authority for a complete assessment.CommentIt could be argued that the Land and Environment Court of Appeal rulings are inconsistent with the commission's definition of 'deliberate', which is what the lower instances had found to be the case. In both cases it was clear that the construction of the disputed wind turbines would kill birds, albeit only in small numbers. The Swedish court rulings imply that it is insufficient to show that wind power construction will actually kill birds in order to demonstrate that the constructing operator is indifferent to the deaths and thus acting deliberately. Perhaps the outcome would have been different if the risk of bird collisions had been greater than in the cases tried by the Swedish court. Since the Land and Environment Court of Appeal denied the motion (put forward in one of the cases) to refer the question to the ECJ, for now there is no final EU law answer on the meaning of the 'deliberate' prerequisite in the birds directive.For further information on this topic please contact Mikael Wärnsby or Sofia Waadeland Grönesjö at Advokatfirman Lindahl KB by telephone (+46 40 664 66 50) or email ([email protected] or [email protected]). The Advokatfirman Lindahl KB website can be accessed at www.lindahl.se.