Category Archives: Wildlife

Wildlife issues include the killing of bald and golden eagles illegally without or legally with FWL Take Permits, the killing of millions of bats that cost farmers millions annually because additional pesticides are needed to eliminate the insects that those bats would have eaten. Migratory birds, waterfowl and songbirds using flyways are killed by the thousands

Court sends 30-year eagle kill permits back to drawing board

Credit:  By Chris Clarke | Rewire | August 13, 2015 |

A federal judge has spiked a U.S. Fish and Wildlife Service plan to issue 30-year-long permits to industry that would allow companies to kill bald and golden eagles.

Judge Lucy Koh of the U.S. District Court in San Jose ruled Monday that USFWS acted illegally when it approved the permits without analyzing the policy’s likely environmental impact as required by federal law. Koh ordered the agency to conduct a full environmental assessment of the policy. The permits, which would have allowed accidental “take” of bald and golden eagles at wind power sites and other industrial facilities, were created after wind power companies objected that a previously proposed system of five-year permits wouldn’t allow them to obtain business loans.

According to this week’s court ruling USFWS Director Dan Ashe implemented the 30-year take permits over the strenuous objections of USFWS scientists and other staff, who said the 30-year rule was scientifically unjustifiable and legally flawed. Now, Judge Koh has backed up those Fish and Wildlife staffers.

The ruling comes as the result of a lawsuit filed by Northern California naturalist Debra Shearwater and four other individual plaintiffs, along with the American Bird Conservancy, against the Interior Department and the USFWS in 2014. The American Wind Energy Association later intervened in the case as an additional defendant.

In September 2009, USFWS established the first-ever procedure by which it would issue take permits for eagles under the Bald and Golden Eagle Protection Act (BGEPA). That law prohibits a wide range of harm to both bald and golden eagles, ranging from intentional killing to harassment, capture, disturbance, and trapping. The take permits would provide a means for companies to avoid prosecution for violating BGEPA if their otherwise legal activities ended up injuring or killing eagles.

But wind power development started growing dramatically after September 2009, and wind companies – which pose an increasing threat to eagles and other raptors as they spread across the landscape – complained that five-year permits would make them financially unstable. Lenders would be less likely to write loans longer than five years for wind companies whose ability to operate might change if they killed too many eagles and didn’t have their permits renewed.

In April 2012, in a nod to the concerns of wind power companies, USFWS proposed extending the term of those five-year take permits to 30 years, citing among its reasons for the change that the agency wanted to “provide more certainty to project proponents and their funding sources.” After a public comment period marked by vociferous opposition to the idea, USFWS issued its final rule establishing 30-year eagle take permits in December 2013. Environmental groups were outraged, while the wind industry said the new rule didn’t go far enough to protect wind company interests.

And critically for purposes of this week’s court ruling, USFWS made that final rule without conducting an environmental assessment of the 30-year permit extension, despite USFWS staff urging the agency consider drafting an Environmental Impact Statement on the policy. Plaintiffs argued that USFWS was legally obligated to review the policy under the terms of the National Environmental Policy Act, the federal law that mandates Environmental Impact Statements for potentially destructive projects and policies.

That decision prompted the lawsuit from Shearwater et al.

When USFWS Director Dan Ashe gave the final order to extend the tenure of eagle take permits from five to 30 years it was an about-face for USFWS, which had previously held that there was no solid scientific justification for take permits lasting more than five years. As we reported in 2012 when the 30-year rule was first proposed, USFWS staff had previously said they couldn’t extend take permits’ tenure past five years, 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. Accordingly, we believe that five years is a long enough period within which a project proponent can identify when the proposed activity will result in take.”

In other words, over a span of more than five years the degree of threat an individual facility poses to eagles might become more dire, as migration patterns shift or eagle populations dwindle. Technological advances that would allow companies to better protect eagles might also arise in a five-year period, and USFWS would have the option of requiring those measures during a permit renewal process.

Judge Koh’s ruling confirmed suspicions voiced by many outside observers that USFWS staff hadn’t changed their minds when agency policy shifted. The shift from 5-year to 30-year eagle take permits didn’t reflect new thinking on the part of the federal scientists charged with safeguarding our nation’s wildlife: it came as Director Ashe sought to address industry concerns about access to loans.

The ruling includes some rather scathing comments by USFWS staff on the top-down imposition of the new rule without environmental analysis. Eliza Savage, USFWS’ Eagle Program Manager for the agency’s Division of Migratory Bird Management, was largely responsible for drafting the language of the 30-year rule. Judge Koh’s ruling cites Savage’s analysis of the task with which she was charged:

Calling the process a “train wreck” that “no one could be proud of,” Ms. Savage warned: “Once again, we find ourselves having taken sloppy action that we will have to do over instead of doing things the way they should have been done to begin with.”

In a telling passage Savage gives a glimpse at turmoil over the rule within USFWS, citing as steadfast opponents of the rule “the wind industry, the enviros, Native American tribes, general public, and the biologists and other staff within [USFWS] who will have to implement it.” Savage added that it was a “no-brainer” that USFWS should conduct an assessment of the new rule under the National Environmental Policy Act.

“Real, significant, and cumulative biological impacts will result,” wrote Savage in a USFWS memo, “if the proposed regulatory changes are implemented.”

USFWS staff met with Ashe in October 2012, according to the ruling, to urge him to conduct a full Environmental Impact Statement analysis of the effects of longer take permits. Dismissing the chances that anyone would challenge the legality of the rule in court, Ashe ordered his staff to prepare the 30-year permit rule.

Three years later, a federal judge has echoed those USFWS staff, except that her recommendation can’t be blithely disregarded, as it has the force of law. Lesson for Dan Ashe: listen to your staff. You just wasted three years.

Judge rules for eagles over wind power

Credit:  By ELIZABETH WARMERDAM | Courthouse News Service | August 13, 2015

SAN JOSE (CN) – A federal judge Tuesday rejected a federal regulation allowing wind companies to kill or injure bald and golden eagles without prosecution for 30 years, citing lack of proper environmental review.

The U.S. Fish and Wildlife Service issued the rule in December 2013, allowing wind energy projects, electric utilities and timber operations to obtain eagle take permits lasting up to 30 years, rather than 5 years.

But U.S. District Judge Lucy Koh found that Fish and Wildlife did not complete a National Environmental Policy Act-compliant impact statement or environmental assessment before increasing the eagle take permits sixfold.

Eric Glitzenstein, attorney for the American Bird Conservancy, told Courthouse News that while expansion of renewable energy is “vitally important,” there is “a right way to do it and a wrong way to do it.”

“As this ruling makes clear, the wrong way is for the government to cut legal corners, ignore its own environmental experts, and needlessly jeopardize eagles and other protected species,” he said.

Bald and golden eagles are not endangered species, but are protected by the Bald and Golden Eagle Protection Act, which prohibits anyone from killing, injuring or disturbing eagles, incidentally or intentionally.

But the Fish and Wildlife Service can issue permits for the “take” – killing or disturbing – of eagles if they are “compatible with the preservation” of eagles and “necessary to protect an interest in a particular locality.”

In 2009, Fish and Wildlife adopted a rule setting the maximum duration for each permit to take eagles at 5 years. After 5 years, applicants can request renewal, allowing Fish and Wildlife to re-evaluate the permit conditions to determine whether more eagles were killed than anticipated.

In December 2013, the government sextupled the take period, to allow companies to obtain 30-year permits to kill eagles legally.

The American Bird Conservancy called it a response to the wind power industry’s desire to expand into eagle habitat.

Indeed, the regulation itself states that the primary purpose of the expansion was to “facilitate the responsible development of renewable energy and other projects designed to operate for decades.”

The Conservancy challenged the rule , saying it was adopted “in flagrant violation of the National Environmental Policy Act because the Service did not prepare any document analyzing the environmental impacts of the rule change.”

Judge Koh agreed, noting that Fish and Wildlife elected not to prepare an environmental impact statement or an environmental assessment, and improperly relied on a two-part categorical exclusion to avoid NEPA review.

Fish and Wildlife determined that the 30-year rule was merely administrative in nature and that the rule’s “environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis,” Koh wrote.

But its decision to increase the take permits to 30 years was not merely administrative in nature, Koh said.

“(T)here is no serious dispute that a sixfold increase in the maximum duration of programmatic eagle take permits will have the effect of reducing public participation in permitting decisions. Over the lifespan of a 30-year permit, a project might be subject to NEPA’s public participation requirements only once, when that permit is first issued,” Koh said in the 46-page ruling.

“By contrast, a project under a 5-year permitting regime would be subject to NEPA’s public participation requirement six times during that same 30-year period. FWS’s apparent compromise to make eagle mortality data compiled by permittees every 5 years ‘available to the public’ in some unspecified manner is no substitute for the public’s right under NEPA to participate in permitting decisions.”

Also, the primary purpose of the 30-year rule was to facilitate energy generation projects. The wind industry had criticized the 5-year rule as “fundamentally unworkable for the industry considering the life of most wind projects is 20 to 30 years,” according to the ruling.

The Secretary of the Interior acknowledged that the rule would help the renewable industry develop longer-term projects. Because the wind industry’s substantive concerns ultimately resulted in the 30-year rule, Koh “fails to see how the regulation could be considered strictly administrative.”

She also rejected Fish and Wildlife’s claim that the environmental effects of the rule are too speculative for meaningful analysis.

US Bill would gut major bird protection laws

By Chris Clarke | February 5, 2015 | ~~

A bill that would seriously curtail the reach of two major federal bird protection laws has been introduced in the House of Representatives, and its sponsors clearly intend the measure as a boon to the renewable energy industry.

WIND-WILDLIFE-EagleKill in Denmark

Eagles killed by industrial wind turbines in Denmark. Rep. Jeff Duncan’s HR 493 will allow more of this to happen with developers allowed not be held liable if processing of Take Permit held up by USFWL. Please write to your Representative to oppose this bill !!

The bill, H.R. 493, would require that the U.S. Fish and Wildlife Service grant permits of at least 30 years’ duration to industries that run the risk of killing eagles, a major overhaul of the federal Bald and Golden Eagle Protection Act. USFWS would have just a year to process each permit, and missing that deadline would ABSOLVE THE APPLICANT of all liability under the act.

A shorter second section of the bill would likely have even more wide ranging impact. That section would change the landmark Migratory Bird Treaty Act to cover only intentional harm inflicted on individual birds, meaning that the law would no longer cover the biggest threats to the hundreds of species the law currently covers.

The bill, introduced January 22 by South Carolina Republican Representative Jeff Duncan, has been referred to the House Natural Resources Committee.

The bill’s formal name provides a clear indication that it’s intended as a gift to the energy industryIt’s called the Clarification of Legal Enforcement Against Non-criminal Energy Producers Act of 2015, or the CLEAN Energy Producers Act.

That’s an obvious reference to the mounting issue of bird deaths at wind and solar power facilities, though the act’s likely largest beneficiaries will likely be oil and gas producers and electric utilities. And it says so right on the tin, in the bill’s subtitle: “To update avian protection laws in order to support an all-of-the-above domestic energy strategy, and for other purposes.”

As we reported in 2013, oil and gas companies are subject by USFWS to much more stringent enforcement of the Migratory Bird Treaty Act than their wind and solar counterparts, with charges brought against companies over the accidental deaths of single birds.

Likewise, though wind turbines are increasing culprits in the deaths of large raptors such as bald and golden eagles, some of the largest fines levied against companies for accidental eagle deaths under the Bald and Golden Eagle Protection Act have fallen to electric utilities, whose power lines pose both impact and electrocution hazards to the large birds.

USFWS has come under fire from eagle protection activists over the last two years for proposing 30-year eagle take permits under the Bald and Golden Eagle Protection Act. Such take permits would shield wind companies from liability for killing eagles.

USFWS had previously suggested take permits of no more than five years’ duration, and the longer term is widely seen as a cave-in to industry pressure. But that policy shift by USFWS would have been limited to just the wind industry, at least for the time being, and as agency policy it could have been reversed at the whim of a future USFWS Director.

H.R. 493 would write that 30-year take permit tenure into the Bald and Golden Eagle Protection Act, removing USFWS’s ability to reduce the length of future take permits even if it turned out the longer permits were bad for eagles.

It would also make those long permits available across the board, to all industries – including electrical utilities.

As for the Migratory Bird Treaty Act, H.R. 493 would radically change the scope of the law by adding just three words to the Act:

Section 6(a) of the Migratory Bird Treaty Act (16 U.S.C. 707(a)) is amended–

(1) by striking “shall” the first and second place it appears and inserting “shall with intent knowingly”

As now written, the act makes it illegal to cause harm to any of the 800-plus listed bird species. The law has been used, if unevenly, to force companies to conduct their business in ways that pose less risk to birds, as in the case of prosecution of an oil company for the death of a single Say’s phoebe in an oilfield lagoon in North Dakota.

When it was first passed in 1918, the Migratory Bird Treaty Act was aimed at hunters, especially those who intended to sell the birds to milliners and others. Those days have passed, and now the largest threats to North America’s migratory birds are the inadvertent ones: power lines, urban plate glass windows, pesticides, and outdoor cats being among the leading causes of bird deaths.

Outdoor cats aside, most avoidable deaths of birds protected under the Migratory Bird Treaty Act can be traced to decisions made by corporations, whether those decisions are to build oil lagoons without protective netting, to build housing developments in protected bird habitat, or to build large glass buildings that pose serious collision risks to small birds.

As Duncan’s bill would rewrite the act, those corporations could only be held liable for bird deaths if USFWS could make a case that the corporation knew those particular individual birds were at risk and intended to cause them harm. That would render the act almost completely powerless to protect birds against modern-day threats, and those threats are currently estimated to kill somewhere between three and six percent of the nation’s breeding birds.

According to the Center for Responsive Politics, oil and gas industry interests were the leading contributors to bill author Jeff Duncan’s 2014 campaign, plowing more than $51,000 into the Congressman’s war chest. Electrical utility interests ponied up another $17,050.

We’ll be tracking this bill as it makes its way through the House. Given the Republican takeover of the Senate and the Obama Administration’s general apathy over protecting wildlife from energy development, H.R. 493 will bear watching closely.

Source:  By Chris Clarke | February 5, 2015 |