Bye Bye Birdie

by Jillian Kay Melchior
Does the government give green-energy firms a free pass on bird deaths?

Two former U.S. Fish and Wildlife Service investigators tell National Review Online that the federal government acted with a bias, giving renewable-energy companies a pass on unlawful bird deaths while rigorously prosecuting traditional energy companies for the same infractions.

“If birds were electrocuted or in oil pits, we prosecuted those companies,” says Tim Eicher, a special agent who handled cases involving migratory birds, eagles, and endangered species until his retirement three years ago. But the Fish and Wildlife Service “has drunk the Kool-Aid on global warming,” Eicher tells NRO. When it comes to wind- and solar-energy companies, “the end, to them, justifies the means: They’re saving the planet, and if eagles die in the process, so be it.”

Dominic Domenici, a former Fish and Wildlife Service investigator who worked with Eicher in Wyoming, says the bias is obvious because, when unlawful bird deaths occur, the federal government “prosecutes everything except for wind and solar — and they give [those renewable companies] permits” for bird-killing. That bias, Domenici says, is “top-down” within the Fish and Wildlife Service.

“They have chosen to do everything they can to make wind energy look perfect,” Domenici says. He adds: “I think they just want an alternative energy so badly that they’re prepared to turn a blind eye on all the bad parts of it. And it may be the best thing in the world, and it may be the answer — but they still need to enforce the laws to put the incentives [against bird-killing in place].”

Potential bias in the enforcement and prosecution of bird deaths has piqued the interest of the House Natural Resources Committee, which in March subpoenaed the case files for all Obama-administration investigations conducted under the Migratory Bird Treaty Act or the Bald and Golden Eagle Protection Act.

But to date, the Fish and Wildlife Service has not provided all of the records, says the committee’s press rep, Michael Tadeo.

“Our subpoena has not been fully complied with,” Tadeo says. “The documents we have received have been heavily redacted, and the administration continues to stonewall us on this issue.”

Republican Kevin Cramer, a North Dakota congressman who’s on the Natural Resources Committee, tells NRO: “The Obama administration is clearly not just biased but hard-biased against fossil-fuel development, and it is willing to selectively enforce federal laws and rules to favor what they consider to be clean energy. It’s certainly not played out any clearer than it is with [the administration’s] enforcement of things like the Migratory Bird Act. . . . It’s a clear-cut bias. I think it’s hypocrisy at its worst. On one hand, they want to be environmentally clean. On the other, they don’t care how many birds they kill doing it.”

But Mike Daulton, vice president of government relations at the Audubon Society, says he’s skeptical of claims or suspicions of bias on the part of the Fish and Wildlife Service.

“I think it’s a stretch to say that the law is being applied more to oil or gas, or that it’s being disproportionately applied,” Daulton tells NRO. “This is looking for an excuse to attack the administration. In the past, [the Migratory Bird Treaty Act] has been applied in very narrow circumstances. The application of the law to wind could be broader. . . . I’ve heard that there are cases in the pipeline at the Department of Interior and Justice.”

But Bob Johns, director of public relations at the American Bird Conservancy, says, “The numbers don’t lie — and those numbers say that the wind- and the solar-energy industries have not been held to the same standards that other industries have.”

Johns noted that the Altamont Energy wind farms in California, for example, kill between 70 and 80 golden eagles a year — and have never been prosecuted. He adds that he’s not aware of any prosecutions against solar companies.

Testifying to the House committee in March, the director of the Fish and Wildlife Service said the agency was investigating 17 incidents at wind farms, along with 21 at oil and gas sites. It’s unclear whether any investigations have occurred at solar-energy sites, even as reports emerge that California’s Ivanpah solar plant alone may be responsible for up to 28,000 bird deaths annually.

A spokesperson for the Fish and Wildlife Service tells NRO that the agency cannot discuss any current investigations or pending prosecutions of wind or solar companies, adding that it also cannot provide statistics without a formal records request. The Department of Justice did not return NRO’s queries by deadline.

Last year, Duke Energy Renewables Inc. pleaded guilty after investigators found 14 golden eagles and 149 other legally protected birds dead at two Wyoming wind farms. According to the Department of Justice, the case represented “the first-ever criminal enforcement of the Migratory Bird Treaty Act for unpermitted avian takings at wind projects.”

Duke Energy eventually reached a plea deal with the feds, agreeing to pay $1 million in fines, restitution, and community services — and to apply for one of the Department of the Interior’s permits, which allow wind producers to kill an allotted number of eagles.

Domenici says of the Duke Energy case: “That was a paper tiger, because they were prosecuted, and they paid their penalty — and then, with no change in the way they conduct business, they were given a [chance to seek a] permit to kill birds.”

In contrast, Domenici says, examine the federal government’s prosecution at PacifiCorp’s coal plants. The company ended up paying more than $10.5 million in fines, restitution, and prevention after the discovery of dead birds. And the company wasn’t eligible for a permit similar to the one Duke agreed to apply for, Domenici says.

Worse yet, Eicher says, while traditional-energy companies can take effective preventive measures, such as putting nets over oil pits or spacing out the wires on electrical lines, the risk posed by wind turbines is more difficult to mitigate.

“There’s nothing you can do with a wind turbine to keep it from killing eagles, other than shutting it off or getting an acetylene torch and tearing it down,” Eicher says.

 — Jillian Kay Melchior writes for National Review as a Thomas L. Rhodes Fellow for the Franklin Center. She is also a Senior Fellow at the Independent Women’s Forum.