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Transitioning from fossil fuels to clean, green energy is absolutely necessary to protect countless species from extinction. The habitat ranges of many wildlife species have already been greatly reduced due to global warming. If nothing is done, it is estimated that 53 percent of U.S. birds could lose more than half of their current geographic range due to climate change by the end of century.[1] Scientists are of consensus that a failure to keep global temperatures from rising by 2 degrees Celsius will result in even more severe impacts as a result of climate destabilization.[2] In order to avoid these disastrous results, the United States will have to do its part by eliminating the vast majority of its carbon emissions in the coming decades. To accomplish this, the U.S. will almost certainly look to replace fossil fuel energy generation with renewable alternatives, but renewable energy production comes with its own unique problems.

 One of the fastest growing forms of renewable energy production, and a crucial avenue to reduce carbon emissions, is wind power. As of 2018, there were more than 50,000 wind turbines across the U.S., with wind power expected to grow from 8 percent of the nation’s energy-generating capacity to 20 percent by 2030, and 35 percent by 2050.[3] These numbers are only expected to rise further as the necessity of transitioning away from fossil fuel use becomes more widely accepted. While wind power is an effective tool to reduce emissions, its production still poses risks, especially to vulnerable migratory birds.

Wind turbines, as well as the associated infrastructure, can pose a collision threat to many species of birds. Each year in North America, wind turbines kill an estimated 140,000 to 328,000 birds.[4] These deaths are spread across roughly 250 species of birds. While some species of birds are not highly affected, other species, particularly those with low reproduction rates, are especially vulnerable to population destabilization as a result of these deaths. Given the expected increase in wind energy production, the impact on vulnerable migratory bird populations is only expected to get worse. Thankfully, there are laws on the books to fight back. 

The Migratory Bird Treaty Act (“MBTA”), enacted in 1918, is one of the oldest wildlife protection laws in the United States. The MBTA makes it illegal to “take” any migratory bird covered by the act, unless under the terms of a valid federal permit.[5] Regulations define “take” to include: pursuing, hunting, killing, trapping, capturing, or collecting, or attempting to do any of the preceding.[6] Historically, the MBTA has been used to prosecute incidental killings by the egregious actions of corporations. For example, BP paid $100 million in fines under the MBTA for killing and harming over 1 million migratory birds during the 2010 Gulf oil spill.[7] In 2013, Duke Energy Renewables was held responsible for more than 150 protected bird deaths at two of its Wyoming wind power sites. Duke paid $1 million in fines and agreed to implement mitigation strategies, including the installation of radar technology to track when birds are nearby as well as procedures to enact temporary shutdowns when necessary.[8]

While some corporations have been punished for “incidental” takings, it remains heavily debated whether such takings truly fall within the scope of the MBTA. The Obama administration adopted a legal opinion stating that the MBTA prohibited certain “incidental” taking of migratory birds.[9] However, on February 3, 2020, the U.S. Fish and Wildlife Service (the “Service”) issued a proposed rule that would constrain the scope of the MBTA to only prohibit actions that are “directed” at migratory birds, as opposed to those that resulted in an “incidental” taking.[10] The Service’s proposed rule is a codification of a 2017 Trump administration legal opinion from the Department of the Interior (“DOI”) which concluded that “the MBTA’s prohibition on pursuing, hunting, taking, capturing, killing, or attempting to do the same applies only to direct and affirmative purposeful actions.” According to the DOI opinion, to include incidental or accidental actions within the purview of the MBTA prohibition would be to “hang[] the sword of Damocles over a host of otherwise lawful and productive actions.”[11]

The ramifications of the February 3 proposed rule, if it were to be adopted, are clear. Wind farms will no longer have to take protective measures to avoid violating the MBTA, as any bird death resulting from the operation of the wind turbines would certainly not qualify as a “direct and affirmative purposeful action” to take protected birds. Such a stance would leave many migratory birds without protection under federal law. Even if the Service’s February 3 proposed rule is enacted and the wind farm operators no longer face liability under the MBTA for “incidental” killings, taking precautionary measures will aid the operators in avoiding potential liability under other federal laws, such as the Endangered Species Act and the Bald and Golden Eagle Protection Act, while also ensuring that vulnerable bird populations are not irreparably damaged. But what measures can operators take?

Weather radar stations can already track migrating birds with ease. In fact, researchers at Cornell have created a real-time forecast of bird migration in the United States.[12] Wind farm operators using this forecast could take a number of measures to lessen the harmful impact of their turbines on migratory birds and their potential liability under the MBTA. In particular, the operators could temporarily stop or slow their wind turbines when large numbers of birds are shown to be flying through the area. Additionally, the forecast could enable operators to switch off some lights on the towers at times of high bird migration. The lights on these structures are known to confuse birds flying at night, contributing to fatal collisions.[13] Another alternative is to simply locate wind farms so that they are not in a major bird migration route.[14]

Regardless of the specific actions taken or regulations in place, the prevalence of wind turbines will only continue to increase as the United States transitions away from fossil fuels. As such, it is critically important to consider all of the environmental impacts of wind energy implementation and respond accordingly to ensure preservation of the most vulnerable components of the environment, such as migratory birds.