“Killing Wildlife In the Name of Climate Change” (Part I: The Double Standard)
[Editor note: Robert Bryce, senior fellow at the Manhattan Institute for Policy Research, is a leading researcher and disseminator of the problems of ‘green’ energy. His February 25, 2014, testimony before the Senate Committee on the Environmental and Public Works follows today and tomorrow.]
The focus of this hearing is on the economic benefits of ecosystems and wildlife and how they “are valuable to a wide range of industries,” including tourism. The purpose is also to examine “how the Administration is preparing to protect” ecosystems “in a changing climate.” The facts show that federally subsidized efforts that are being undertaken to, in theory, address climate change, are damaging America’s wildlife.
Furthermore, those same efforts have, for years, been allowing an entire industry to avoid federal prosecution under some of America’s oldest wildlife laws. My discussion will focus largely on the wind-energy sector, an industry that has been getting federal subsidies since 1992, and the impact that the wind-energy business is having on wildlife.  There are two key questions that must be addressed:
* Are all energy providers getting equal treatment under the law when it comes to wildlife protection? The answer to that question is no. * Is widespread deployment of wind turbines an effective climate-change strategy? The answer, again, is no. [Part II of Bryce post tomorrow]
Part I; Energy companies are not being treated equally when it comes to enforcement of federal wildlife laws. I have been writing about the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act since the late 1980s.  In the late 1980s and early 1990s, the US Fish and Wildlife Service brought hundreds of enforcement cases against the oil and gas industry in Texas, Oklahoma, and New Mexico, for violations of those laws. And rightly so. At that time, the Fish and Wildlife Service estimated that about 600,000 birds per year were being killed after coming in contact with illegal or improperly maintained pits in the oil fields.  In 2009, I resumed writing about the enforcement of the Migratory Bird Treaty Act, (enacted in 1918) and Bald and Golden Eagle Protection Act (enacted in 1940) after groups like the American Bird Conservancy began calling attention to the threat that wind turbines were posing to birds and bats.  A July 2008 study of bird kills by wind turbines at Altamont Pass, California, estimated that the massive wind farm was killing 80 golden eagles per year. Those birds are protected by the Bald and Golden Eagle Protection Act. 
In addition to the eagle kills, the study, funded by the Alameda County Community Development Agency, estimated that about 2,400 other raptors, including burrowing owls, American kestrels, and red-tailed hawks – as well as about 7,500 other birds, nearly all of which are protected under the Migratory Bird Treaty Act – were being killed every year at Altamont.  In 2009, a biologist with the Fish and Wildlife Service estimated wind turbines were killing some 440,000 birds per year. 
The bird-kill studies in 2008 and 2009 underscored the pernicious double standard at work. In the late ‘80s, the Fish and Wildlife Service, found widespread violations of the Migratory Bird Treaty Act by the oil and gas industry. In response, it launched a multi-state, multi-jurisdictional crackdown on the oil and gas industry.
By 2009, the agency’s own biologists were finding that the wind industry was causing similar levels of wildlife mortality to what had occurred two decades earlier in the oilfield, and yet there were no prosecutions. There were no multi-state law-enforcement actions. Instead, there was widespread silence on the issue and what appeared to be the Interior Department’s issuance of a de facto get-out-of-jail-free-card for the wind industry because it had been deemed “green” by some advocates.
At the same time the wind industry was getting a free pass on bird kills, the Fish and Wildlife Service continued prosecuting traditional energy companies for violating the Migratory Bird Treaty Act. On July 10, 2009, Oregon-based PacifiCorp agreed to pay $1.4 million in fines and restitution for killing 232 eagles in Wyoming over a two-year period. The birds were electrocuted by the company’s power lines. 
In 2011, the Fish and Wildlife Service filed criminal indictments against three drillers who were operating in North Dakota’s Bakken field. One of those companies, Continental Resources, was indicted for killing a single bird, a Say’s phoebe. Brigham Oil & Gas was charged with killing two mallards and Newfield Production was indicted for the deaths of two mallards, one northern pintail, and one red-necked duck.  In 2012, investigators found that the Pine Tree wind project in California had killed at least six golden eagles. 
In early 2013, Jill Birchell, a special agent in charge with the Division of Law Enforcement of the Fish and Wildlife Service, told me that a total of nine golden eagles had been killed at the Pine Tree project.  A biological assessment of the Pine Tree project estimated that the wind project was killing some 1,595 birds, or about 12 birds per megawatt of installed capacity, per year. 
Given the number of dead eagles being found at Pine Tree, and the projections of other bird mortality, the obvious question is this: Why haven’t the owners of the Pine Tree project been prosecuted for violating the Migratory Bird Treaty Act and the Eagle Protection Act? I can only speculate as to why there hasn’t been a prosecution. But it’s worth noting that the Pine Tree project is owned by the Los Angeles Department of Water and Power. Prosecuting such a high-profile governmental entity for repeatedly violating some of America’s oldest wildlife-protection laws would be politically embarrassing. On its website, the LADWP claims that the Pine Tree facility is the “largest municipally owned wind farm in the US.” The agency also says the Pine Tree project “displaces at least 200,000 tons of greenhouse gases” per year.
In March 2013, a peer-reviewed study published in the Wildlife Society Bulletin, estimated that in 2012 alone, US wind turbines killed 888,000 bats and 573,000 birds. Those bird kills included 83,000 raptors.  In September 2013, some of the Fish and Wildlife Service’s top raptor biologists reported that the number of eagles being killed by wind turbines has increased dramatically over the last few years, going from two in 2007 to 24 in 2011. In all, the biologists found that wind turbines have killed some 85 eagles since 1997.
And Joel Pagel, the lead author of the report, told me that that the eagle-kill figures they used are “an absolute minimum.” Among the carcasses: six bald eagles. Pagel’s study was published just five months after the Fish and Wildlife Service issued a report which said flatly “there are no conservation measures that have been scientifically shown to reduce eagle disturbance and blade-strike mortality at wind projects.”
The Pagel study is key because it shows that as more wind projects have been built, more birds have been killed. In 2007, the US had about 17,000 megawatts of installed capacity. By 2011, that figure had nearly tripled to about 47,000 megawatts.  Over that time period, the number of documented eagle kills increased by a factor of 12. Furthermore, when I interviewed Pagel by phone shortly after his report was published in the Journal of Raptor Research, he told me that since he completed his report, he and his colleagues have documented additional eagle kills by wind turbines in Idaho, Montana, Nevada, and North Dakota. Pagel refused to say how many additional eagle-kills they’d confirmed, but said, “it’s quite a few.”
Pagel went on to say that there are now “14 states where eagles have been killed” by wind turbines. “That’s a very large geographical area,” he said, adding that more than half of the eagle carcasses “were found incidentally,” and that there were “no systematic surveys” of the wind projects by people who had been trained to look for dead birds.  To clarify that last comment: Pagel said that most of the dead eagles that have been killed by wind turbines were found by people who were not looking for them. Therefore, the actual total of dead eagles is likely far higher than what Pagel and his colleagues are reporting. “We don’t know how many eagles are being killed at wind farms,” Pagel said, “but it’s definitely more than what we have reported.”
The September report from Pagel and his colleagues appears to have embarrassed federal law enforcement authorities into finally take action against the wind industry.
On November 22, the Justice Department announced that it had reached a $1 million settlement with the owner of two Wyoming wind projects which had illegally killed golden eagles and other federally protected birds. The plea deal, with Duke Energy, marks the first time that the federal government has enforced the Migratory Bird Treaty Act against the wind industry. By bringing criminal charges against Duke – for killing 14 golden eagles and 149 other protected birds – the Justice Department ended the legal double standard on enforcement of the Act. It’s not at all clear what happens next.
Although the Fish and Wildlife Service says it has several active bird-kill investigations on other wind projects, no prosecutions have been announced. The situation got even murkier in December, when the Interior Department announced that it would consider granting some wind-energy companies permits that may allow them to kill or injure bald and golden eagles for up to 30 years without penalty.
A number of environmental groups oppose the 30-year permit deal, including the American Bird Conservancy, Conservation Law Center, and the National Audubon Society. Immediately after the deal was announced, Audubon issued a statement with the headline “Interior Dept. Rule Greenlights Eagle Slaughter at Wind Farms.”
The statement calls the permit deal “a stunningly bad move.” It also quotes the group’s president and CEO, David Yarnold: “Instead of balancing the need for conservation and renewable energy, Interior wrote the wind industry a blank check.” He went on, saying ” Let me be clear: there is no such thing as a free lunch, particularly when it comes to energy production. Every form of energy comes with positives and negatives.
What is problematic is the selective enforcement of our wildlife laws. If we are going to have a protected class of energy producers who are exempt from federal laws, then the Interior Department should make that policy clear. If the Justice Department and Interior Department are not going to enforce the law equally – if justice is not going to be blind – then perhaps policymakers should consider repealing our wildlife laws altogether. Before moving on, let me briefly mention the issue of bat kills.
Earlier this month, I interviewed Merlin Tuttle, one of the world’s foremost experts on bats. He told me “Anyone familiar with bat population biology is deeply concerned about the impact of wind turbines on the long term viability of a number of bat species.”
Tuttle, who is the founder of Bat Conservation International, as well as the Bats and Wind Energy Cooperative, said that bats have slow reproductive rates.  And while some wind-energy companies have been conscientious in their efforts to mitigate the impact of their facilities on bats, other companies have not. The result: “We are at great risk of needlessly creating new endangered species. We risk losing the benefits of bats to natural systems and agriculture.” 
 Department of Energy, “Renewable Electricity Production Tax Credit” (undated).
 See Robert Bryce, “Crackdown Due on Foul Water Holes: Birds Fall Victim to Slime in 3 States,” Tulsa Tribune, November 17, 1989. See also, Robert Bryce, “Oil Waste Pits Trap Unwary Birds,” Christian Science Monitor, March 19, 1990.
 Robert Bryce, “Oil Waste Pits Trap Unwary Birds,” Christian Science Monitor, March 19, 1990.
 Robert Bryce, “Windmills Are Killing Our Birds,” Wall Street Journal, September 7, 2009.
 Fish and Wildlife Service data.
 Alameda County Community Development Agency, “Altamont Pass Wind Resource Area Bird Fatality Study,” July 2008, 1–3.
 Albert M. Manville II, “Towers, Turbines, Power Lines, And Buildings—Steps Being Taken By The U.S. Fish And Wildlife Service To Avoid Or Minimize Take Of Migratory Birds At These Structures,” Proceedings of the Fourth International Partners in Flight Conference: Tundra to Tropics 262–272, undated (2009), 268.
 Fish and Wildlife Service data.
 Christopher Helman, “Judge Throws Out Criminal Case Against Oil Companies for Killing Birds at Drilling Sites,” Forbes, January 18, 2012.
 Louis Sahagun, “US probes golden eagles’ deaths at DWP wind farm,” Los Angeles Times, February 16, 2012.
 Author phone interview with Birchell, March 4, 2013.
 Center for Biological Diversity press release.
 K. Shawn Smallwood, “Comparing bird and bat fatality-rate estimates among North American wind-energy projects,” Wildlife Society Bulletin, March 26, 2013.
 BP Statistical Review of World Energy 2013.
 Author phone interview with Pagel, September 16, 2013.
 For more on the BWEC, see here.
 Author interview with Tuttle by phone, February 17, 2014.