As we reported in June, the U.S. Fish and Wildlife Service (FWS) has been working to rewrite the rules under which it protects the nation's iconic golden and bald eagles, long an obstacle to wind turbine development. That process has been going through the usual environmental review process: the most recent public comment period ended last month.
This week, a group of mainstream environmental organizations and wind industry groups released a letter to Interior Secretary Ken Salazar, calling for a "stakeholder process" to be implemented that would give special weight to the comments of industry and large green groups as eagle protection rules are rewritten.
Though Salazar had not responded to the letter at press time, he is likely to pay close attention to its signers. The letter, which was dated August 22, was signed by directors of the national environmental groups the National Audubon Society, Natural Resources Defense Council, National Wildlife Federation, The Wilderness Society, The Nature Conservancy, and the Sierra Club, as well as by the trade groups the American Wind Energy Association, The Wind Coalition, Alliance for Clean Energy New York, Interwest Energy Alliance, RENEW New England, and the California Wind Energy Association, among others.
In the letter, the groups urge the U.S. Fish and Wildlife Service to "supplement the current notice-and-comment proceedings through continued and collaborative interaction with key stakeholders with the express purpose of examining the issues."
Stakeholders, strictly speaking, may include individuals or small groups who have an interest in the issue being decided. In practice, however, stakeholders' groups tend to be composed of corporations and trade associations with financial interests in the topic, large environmental groups or other large non-profits, state and federal agency representatives, and, on occasion, Native tribal governments. It's not unknown for stakeholders' groups to exclude interested members of the public from meetings. (It's happened to me on more than one occasion.) Though stakeholders' groups can easily be managed in a fashion that's open to and accessible by members of the public, they can just as easily be run to exclude all but a core group of players -- it's as easy as neglecting to tell an unwanted participant about the next meeting. "The term 'stakeholders' is code for an exclusive, self-selected group that makes big decisions that bypass the public," Janine Blaeloch, director of the Seattle-based public lands protection group Western Lands Project, told ReWire. "And their decisions are usually much worse than what would be come from a more transparent process."
The letter to Salazar is non-committal about the form this stakeholder process might take:
There are several potential processes ranging from a negotiated rulemaking, advisory committee, or policy dialogue to less formal interactive technical workshops, a technical conference, an agency task force, and/or a scientific panel. The important denominator is that the process includes a variety of experts on eagles, the permitting process, the regulatory process and energy development.
Most of those possibilities sound fairly benign. A "negotiated rulemaking" process may raise hackles among some experienced non-stakeholders: it involves industry and green groups having some say over the language of a proposed rule. The rule would still be subject to the normal rulemaking process afterwards, including public comment. However, having input and even veto power over the initial language of the proposed rule makes a huge difference in the final rule.
The letter continues:
Such a process could explore, for example: additional science and data on assessing eagle populations; further mitigation options; advanced conservation practices; short- and long-term resource needs and administrative priorities; implementation of effective risk criteria; how eagle information gaps should be addressed and how responsibly sited wind farms are allowed to move forward in the interim while this process is on-going; other causes of eagle mortality in addition to wind energy; and generally how to create more certainty for both the species and the wind industry under a regulatory process for eagle permits.
Emphasis added. Again, much of this sounds perfectly reasonable. Creating "certainty" for industrial developers, however, is a long-standing "dogwhistle" for business-based opponents of environmental regulation, and its use in a letter signed by representatives of the wind industry may raise eyebrows.
Business members of a stakeholder group need not be limited to the wind industry. Quite a few industries tangle with eagles and the laws that protect them, from timber to mining to the operators of communications and power transmission towers. But few industries see eagle protection laws as as big a stumbling block as the wind industry. Just one California wind facility -- the admittedly poorly sited Altamont Pass wind farm -- kills an average of 67 eagles a year. The Los Angeles Department of Water and Power's much smaller Pine Tree Wind Farm in the Tehachapi Mountains made the news this year for killing eight eagles in two years.
Since 2009, the Interior Department has been putting pressure on its subsidiary agencies to remove obstacles to renewable energy development on public lands. Before that year, FWS didn't issue "take permits" for eagles -- legal permits to cause harm to eagles, that harm ranging from annoyance to mortality -- that extended for longer than 90 days. In 2009, FWS extended that maximum permit tenure to five years, and made formal statements that that was the longest period for eagle take permits that the science could justify. This year FWS changed its tune and proposed to extend take permit tenure for eagles even further, to 30 years. The agency said:
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.
That's a pretty good capsule description of what developers talk about when they say they need more "certainty."
Despite the fact that no legal action has been taken against wind turbine owners whose equipment kills eagles, FWS's existing policy on enforcement of the Bald and Golden Eagle Protection Act has, in many observers' estimations, resulted in effective protection of the birds. Bald eagles numbers increased to the point where they were taken off the Endangered Species list in 2007.
"The U.S. Fish and Wildlife Service did a good job crafting the 2009 eagle take permit rule," Kelly Fuller, Wind Campaign Coordinator for the American Bird Conservancy in Washington, D.C., told ReWire. "We think its strong standards for eagle protection should be continued."