Compliance with federal statutes to protect America’s bird population has long been a challenge for the energy industry--particularly with respect to transmission lines and wind farms--due in part to the limited availability of permits for accidental avian deaths.  Late last year, the US Fish & Wildlife Service (USFWS) took a step to address this challenge by issuing a regulation to increase the opportunities for developers to obtain programmatic permits under the Bald and Golden Eagle Protection Act, 16 U.S.C. § 668 et seq. (BGEPA).  A pending lawsuit by the American Bird Conservancy, however, threatens to stop the permitting program before it can get off the ground.

The BGEPA imposes strict liability for eagle “take,” which is defined by the statute as “to pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb.” 16 U.S.C. § 668c.  The BGEPA also authorizes USFWS to institute a permitting framework for “programmatic take” for entities that may accidentally take eagles in the course of otherwise lawful activities.  However, the USFWS permitting program has been slow to develop.  USFWS programmatic permit regulations enacted in 2009 limited the permit term to five years, which did not correspond well with the much longer life span of many large-scale projects. 

In response to criticism of the time limits in the 2009 rules, USFWS issued a new rule late last year extending the eagle take permit term to 30 years.  78 Fed. Reg. 73707 (Dec. 9, 2013).  The extended permit duration will provide greater certainty to developers by covering a larger portion of the expected operational lifetime of projects, while still allowing USFWS to closely monitor eagle protection measures over time.  Id. 

This past April, however, the American Bird Conservancy notified USFWS that it intends to challenge the new permitting rule.[1]  The American Bird Conservancy claims that USFWS did not allow for public comment and did not prepare an environmental impact statement as required under the National Environmental Policy Act, 42 U.S.C. § 4332(C).  Although bald and golden eagles are no longer protected under the Endangered Species Act, 16 U.S.C. § 1531 et seq., the American Bird Conservancy believes that liberalizing eagle take permits will impact endangered species that share their habitat.  Finally, ABC claims that, by accommodating the wind industry’s needs, USFWS has violated the BGEPA itself. 

While it is too early to speculate on the outcome of a potential lawsuit, the stakes for the energy industry are high.  USFWS has brought several high-profile enforcement cases in recent years under federal avian protection statutes, and programmatic take permits could be an important compliance tool for avoiding enforcement for accidental eagle deaths.[2]