Last week the Fifth Circuit issued a ruling that reduces uncertainty regarding criminal liability for taking migratory birds. In particular, the ruling alleviates potential liability for facilities where interactions with migratory birds are effectively unavoidable—such as wind production facilities, power transmission lines, and other energy production or manufacturing facilities. These types of facilities face a fundamental tension under the Migratory Bird Treaty Act (“MBTA”): on the one hand, the MBTA imposes strict criminal liability for the take of migratory birds; and on the other hand, there is no permit available to authorize the unintentional take of migratory birds. The Fifth Circuit’s ruling joins other circuits around the country in holding that the MBTA applies only to the intentional take of migratory birds; however, the court’s ruling widens the split between circuits that differ in how MBTA liability applies.
The American Bar Association recently held its 28th annual conference for the White Collar Crime Institute in Miami, Florida. http://www.americanbar.org/calendar/2014/03/white_collar_crime2014.html?sc_cid=CEN4WCC-CRS.
The Institute prides itself for showcasing the most significant white collar crime issues across the country. At this year’s meeting, Stacey Mitchell – Chief of the Environmental Crimes Section at U.S. Department of Justice (DOJ) – discussed new areas and developments during a panel discussion on “The Expanding Net of Environmental Crimes Prosecutions.”
During the Q&A, Ms. Mitchell was asked about new areas of environmental criminal enforcement for DOJ. She responded that enforcement actions against the wind energy industry would be new this year, and specifically, enforcement actions under the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA).
While there is a lengthy history of MBTA and BGEPA enforcement, the focus thus far has been largely on individuals and the oil/gas industry – think poachers, farmers, and oil spills. DOJ’s enforcement record has been mixed as it relates to prosecuting companies that are operating legally but where migratory birds are injured. This year, however, Ms. Mitchell announced that DOJ would be taking a closer look at how wind companies comply with these laws. Ms. Mitchell pointed to a recent plea deal with Duke Energy Renewables, and alluded to more cases on the horizon. Just a few months ago the House Committee questioned the U.S. Fish & Wildlife Service about why it was prosecuting oil and gas companies under the MBTA and BGEPA, but not wind companies (see http://1.usa.gov/1fqL5Yt).
The Duke Energy Renewables (DER) plea was the first of its kind against involving a wind energy company. In late 2013, DER plead guilty to two counts of MBTA violations for killing approximately 163 migratory birds, including 14 golden eagles at two wind farms in Wyoming. Under the terms of the plea agreement, DER will pay nearly $1 million in fines and restitution, commit to taking up to $600,000 in operational adjustments per year for the life of the wind projects, and agree to file for an eagle take permit.
Other companies are being investigated under the MBTA and BGEPA, which establish criminal liability for unintentional take of migratory birds and eagles. The MBTA is a “strict liability statute,” and the BGEPA is enforced under a general intent criminal standard. The stakes are high for the wind industry given the low legal standards to sustain a conviction, the steep costs of operational adjustments, and the uncertain risks underlying bird/turbine interaction. These risks are compounded by the fact that there is no MBTA permit for incidental take of migratory birds from industrial activities, and that an eagle take permit has never (to date) been issued to a wind farm.
It remains to be seen how DOJ will exercise its enforcement discretion to target wind companies. But what is clear is that the wind industry may be DOJ’s bird-in-the-hand for high-profile environmental cases in the years to come.