On November 22, 2013, the Department of Justice announced its first prosecution of a wind farm operation for violations of the Migratory Bird Treaty Act (MBTA), a criminal statute governing take of over 1000 species of birds. The oil and gas industry has been increasingly critical of the US for its failure to prosecute wind farm operations, which kills thousands of birds annually, many of them raptors such as golden eagles and hawks, while pursuing oil and gas operations for a relative handful of bird fatalities usually associated with waste oil pits. Last week’s prosecution and plea agreement, addressing several Wyoming wind farm operations of Duke Energy Renewables, Inc. (“Duke Energy”), included a guilty plea by Duke Energy to two misdemeanor violations of the MTBA.

Duke Energy is subject to a five year probation period, and will pay $1,000,000 for penalties, land purchases, and restitution to a variety of organizations, and within two years seek programmatic take permits under the Bald and Golden Eagle Protection Act (Eagle Act) for the Wyoming facilities at which golden eagles had been taken. Duke Energy is further obligated to expend up to $600,000 annually on development and implementation of a migratory bird compliance plan in connection with those permits.

Although Duke Energy acknowledged in the settlement that golden eagles were among the birds killed, it was not required to also plead to violations of the Eagle Act, under which the US could have imposed additional civil or criminal penalties. The factual recitations accompanying the settlement agreement include Duke Energy’s knowledge of the presence and potential hazard to golden eagles prior to commencement of operation, but also include extensive recitations regarding Duke Energy’s efforts to avoid and mitigate for any takings of migratory birds.  The US stated that it could have taken action under both the MBTA and the Eagle Act, but that it allowed Duke Energy to plead to two  misdemeanor MBTA violations because of Duke Energy’s cooperation and voluntary reporting of mortalities, and its significant efforts to minimize and mitigate for bird losses.

While there is no equivalent programmatic permitting plan available under the MBTA, the settlement agreement provides that if the company complies with the agreement, the US will not prosecute it under either the Eagle Act or the MBTA for future unpermitted takingsof migratory birds or other avian wildlife at any of the named projects. Recognizing the complexity of the recently established Programmatic Eagle Take Permit program, the US agreed that so long as Duke Energy is diligently and in good faith pursuing issuance of the permits, the non-prosecution agreement under the Eagle Act and the MBTA could  continue as long as ten years. The US also informed Duke Energy that, absent the acquisition of new and material incriminating information, it did not intend to pursue claims against any individuals for the conduct described in the settlement agreement.

This prosecution sends a signal to wind farm operators (and to other renewable energy companies, such as solar farms), that they cannot rely simply on the “good feelings” associated with renewable energy production to dissuade government prosecution of migratory bird fatalities.  The US has put forward increasingly detailed guidance on best management practices for such operations. The prudent course is for wind farm owners and operators to take compliance with that guidance seriously, and to do so before commencing operation.