A group of individual conservationists and a national bird protection organization have sued the U.S. Fish and Wildlife Service over the agency's decision to extend the length of permits issued to the wind power industry to kill bald and golden eagles.
The suit, filed Thursday in the U.S. District Court in San Jose, charges that USFWS's extension of take permits for the two species from five years to 30 years -- which we've reported on extensively at ReWire -- is a violation of the National Environmental Policy Act (NEPA), the Bald and Golden Eagle Protection Act (BGEPA), and other federal laws.
"Eagles are among our nation's most iconic and cherished birds," said Dr. Michael Hutchins of the American Bird Conservancy (ABC), one of the plaintiffs. "They do not have to be sacrificed for the next 30 years for the sake of unconstrained wind energy."
"Take permits" are essentially licenses to kill, injure, or otherwise harm protected species. Most commonly issued for species protected under the U.S. Endangered Species Act, the eagle take permits at the focus of the lawsuit would be issued under the Bald and Golden Eagle Protection Act.
Passed in 1940 to protect bald eagles and extended to cover golden eagles in 1962, the BGEPA mandates stiff penalties for harming the birds, with $10,000 in fines and two years' imprisonment for a second offense. As wind turbines pose an obvious threat to eagles, with dozens killed each year at just one wind facility east of San Francisco, pressure has mounted over the last few years for USFWS to draft some administrative means to allow wind turbines to operate without exposing the turbines' owners to legal liability.
In 2009, USFWS proposed issuing take permits under BGEPA to wind turbine owners, which would allow turbines to injure a limited number of eagles as long as certain efforts were taken to minimize risk to the birds. At that point, the agency set five years as the maximum length of time for which the take permits would be valid without renegotiation, saying:
"[T]he rule limits permit tenure to five years or less because factors may change over a longer period of time such that a take authorized much earlier would later be incompatible with the preservation of the bald eagle or the golden eagle".
By April 2012 USFWS had done an about-face. In rules it published that month proposing a 30-year take permit tenure, the agency wrote:
Since publication of the 2009 final rule, it became evident that the 5-year term limit on permits did not correspond to the timeframe of projects operating over the long-term and was insufficient to enable project proponents to secure the funding, lease agreements, and other necessary assurances to move forward with projects.
In other words, wind turbine owners' financial convenience trumped conservation of bald and golden eagles. The final rule allowing the extended take permits became official in December.
The plaintiffs charge that in making that rule, USFWS failed to analyze its effect on eagle populations over the long run, as well as the effect on other bird species, which they charge is a violation of NEPA.
"We understand that some bird mortality is inevitable," said ABC's Hutchins. "However, in this case, long-term, cumulative impacts to eagle populations were not properly assessed, and the 30-year take permit rule was adopted in the absence of the required NEPA analysis concerning impacts on eagle populations or any other species that share the eagles' range."
ABC's co-plaintiffs include conservationists Deborah Shearwater, Steven A. Thal,
Michael Dee, Dr. Carolyn Crockett, and Robert M. Ferris.