Wind Power

A wind energy company that faced consequences for the deaths of 150 eagles says wind farms are being unfairly targeted. Conservationists and some other wind developers disagree.

Alan Rogers file, Star-Tribune

The sentencing of a wind energy company this week in the deaths of at least 150 eagles has brought renewed focus to the complicated relationship between wind turbines and birds.

A subsidiary of NextEra Energy, the world’s biggest generator of wind and solar power, pleaded guilty to three deaths of bald and golden eagles in Wyoming and New Mexico. It also acknowledged that more than 100 other eagles had been killed across 50 of its 54 wind farms, primarily during collisions with turbine blades, the U.S. Department of Justice announced Thursday.

Killing bald and golden eagles without a federal permit violates the Migratory Bird Treaty Act, a 1918 law that prohibits the take — killing, capturing, selling, trading or transport — of protected migratory bird species. The subsidiary, ESI Energy, was ordered by a federal judge in Cheyenne to pay more than $8 million in fines and restitution, spend up to $27 million on mitigation measures during a five-year probationary period and pay an additional $29,623 per bald or golden eagle killed or injured during that time.

It will also be required to apply to the U.S. Fish and Wildlife Service for eagle take permits at every facility where deaths have been documented.

“This agreement holds ESI and its affiliates accountable for years of unwillingness to work cooperatively with the Service and their blatant disregard of wildlife laws,” Edward Grace, assistant director of the agency’s office of law enforcement, said in a statement.

But NextEra President Rebecca Kujawa believes wind farms are being unfairly targeted.

The federal government’s interpretation of the law typically “makes building and operating a wind farm into which certain birds may accidentally fly a violation of the Migratory Bird Treaty Act,” Kujawa said in a statement, “even when the wind farm was developed and sited in a way that sought to avoid avian wildlife collisions.”

Not everyone agrees.

The Fish and Wildlife Service issues permits to developers of wind farms and other industrial projects for the unintentional take of eagles and other protected species. To secure such permits, companies must conduct extensive site studies, use those findings to minimize impacts and commit to other mitigation and conservation measures.

“You do have good actors out there,” said John Burrows, a conservation advocate at the Wyoming Outdoor Council. “You have some companies that are really doing it right, putting a ton of money in studies and resources that minimize wildlife conflict and site in really responsible locations. And then you have others who, for some reason or another, take what look like shortcuts.”

According to the Department of Justice, ESI “deliberately elected” not to seek eagle take permits for the facilities where eagles were killed, apparently to save money, but “in fact took eagles, without any permits authorizing that take.”

ESI isn’t the first company to be penalized for not securing eagle take permits in Wyoming. A Duke Energy subsidiary pleaded guilty in 2013 to the unpermitted deaths of golden eagles and other protected birds at two of its Wyoming wind farms. In 2014, a subsidiary of PacifiCorp — the parent company of Wyoming’s largest electric utility — did the same.

Technically, eagle take permits are optional. That’s how ESI and other companies managed to build wind farms without them — and why many environmental groups, including the Wyoming Outdoor Council and the National Audubon Society, want permitting to be mandatory.

“A lot of this could have been prevented with a bit more due diligence up front and taking some of the suggested advice seriously,” Burrows said.

To some Wyoming wind developers, however, seeking an eagle take permit ahead of construction — rather than risking a lawsuit and modifying the wind farm retroactively — seemed like the obvious choice.

Power Company of Wyoming has spent millions of dollars on eagle conservation at its Chokecherry and Sierra Madre Wind Energy Project, the largest proposed wind power facility in the country, according to Kara Choquette, the company’s communications director.

The company rearranged its planned turbine locations to avoid spots it found to have high eagle activity, even when that meant sacrificing some of the area’s best wind resources. It plans to turn off certain turbines at times when eagles are expected to be most vulnerable, ensure the birds have food sources a safe distance from the turbines and pay for other eagle protections, like safer power lines, outside the project area.

“We will have people whose job it will be to basically look for any instances of avian mortality,” Choquette said. They’ll be trained and tested on their ability to find dead birds on the landscape, she added, “and we hope that they come up empty handed every day.”

While wind farms are a recognized cause of death among bald and golden eagles, they’re not the biggest. And the many precautions taken by Power Company of Wyoming — along with plenty of continued federal oversight to ensure things go as planned — give the Fish and Wildlife Service confidence to allow the occasional eagle death.

For wind farm developers, eagle conservation requires “a significant commitment of time and resources, for sure,” Choquette said.

But when companies involve the Fish and Wildlife service in projects from the start, she said, “it’s possible to do both, and, working together, you can do both.”