Renewable Energy and Wildlife

Concern about the impacts of energy infrastructure on wildlife is ramping up. Several lines of evidence, including regulations, formal agency recommendations, and legal cases, indicate a need for better integration of wildlife mitigation into project development.

Bird biologist and Westwood truck

“This pattern of regulatory and legal activity demonstrates that the industry needs to be more proactive about addressing wildlife issues to manage risks and maintain a positive public image for renewable energy”

Many types of infrastructure can impact wildlife. In the renewable energy industry, wind turbines, transmission lines, and solar panel arrays have the potential to cause collision mortality and/or to displace animals from their habitat. The potential for collision mortality in particular has focused attention on birds and bats.

The response of agencies to potential wildlife impacts from renewable energy development has been multi-faceted. Recent efforts include an emerging emphasis on wildlife buffers, newly initiated planning documents for endangered species conservation, forthcoming guidelines from the U.S. Secretary of Interior, and increased enforcement of wildlife protection laws. This pattern of regulatory and legal activity demonstrates that the industry needs to be more proactive about addressing wildlife issues to manage risks and maintain a positive public image for renewable energy.

Wildlife Buffers
Wildlife buffers are used to create distance between human activity and specific resources used by animals. These resources include nest sites of sensitive or communally nesting birds or bats and other concentrated areas of wildlife use, such as wetlands and grouse display grounds ("leks").

Where infrastructure can be placed in human-altered landscapes, such as cropland, buffers are not typically needed. Where infrastructure and wildlife may interact more closely, however, buffers can minimize impacts and streamline project approvals. The trade-off for renewable energy development, of course, is reduced land available for energy generation and transmission.

Recent buffer width recommendations have varied from 100 meters (330 feet) to 8 kilometers (5 miles). In Alberta, Canada, for example, agency guidelines for wind energy development specify a 100-m setback from wetlands; a 500-m (0.3-mi) setback from sharp-tailed grouse leks and certain raptor nests; and no turbines within 8 km (5 mi) of endangered greater sage grouse.

These recommendations are usually voluntary. Agencies seldom have direct jurisdiction over energy projects, though public utility commissions sometimes request wildlife buffers during permitting processes. Project developers must balance the simplified approvals, positive perceptions, and reduced land base associated with buffer compliance against the risk of project delays and controversy that can arise if infrastructure is proposed near sensitive wildlife areas.

Endangered Species Conservation
The Great Plains of North America contain some of the highest potential for wind energy development on the continent. This region overlaps with the migratory pathway of the core population of endangered whooping cranes. Although whooping cranes have increased in number from 15 surviving birds in the 1940s, the species remains vulnerable to mortality from collisions with wind energy infrastructure and habitat disruption.

The U.S. Endangered Species Act (ESA) makes it unlawful to "take" or harm a listed species, even when the harm is unintentional. The ESA includes provisions for take that is incidental to otherwise lawful activity. The permit process for incidental take requires preparation of a Habitat Conservation Plan (HCP) and related documents.

To reduce the redundancy of project-specific HCPs, several wind energy companies have started preparation of a "programmatic" HCP to address similar activities across a large area. This HCP focuses on whooping cranes but also includes lesser prairie chickens, a candidate species that also inhabits the Great Plains. While the HCP is expected to make planning and permitting more effective and efficient, it will still require 2-4 years, plus simultaneous preparation of a federal Environmental Impact Statement and some project-specific analysis.

Because the programmatic HCP for whooping cranes and wind power is just getting underway, many uncertainties remain about its implications for energy infrastructure development. Other segments of the renewable energy sector, such as transmission, will be watching to see whether a programmatic HCP is in their future.

Wind Turbine Guidelines
The U.S. Fish and Wildlife Service (USFWS) published interim wind turbine guidelines in 2003. The U.S. Secretary of Interior later created a Wind Turbine Guidelines Advisory Committee, which has been drafting new recommendations for the USFWS to be submitted by October 24, 2009.

The guidelines will raise the bar for consistent adherence to wildlife survey protocols. As currently drafted, the guidelines outline a tiered approach intended to be used as a decision-making framework. Each tier describes progressively more detailed wildlife and habitat investigations, from preliminary site screening to advanced field studies.

Although the guidelines will be voluntary, the committee has explored legal and financial incentives. They intend for the guidelines to be used "by all prospective developers of wind energy projects." As discussed below, recent enforcement cases suggest that the guidelines may develop real teeth.

Whooping crane

Legal Enforcement
U.S. courts recently prosecuted and heavily fined two major energy companies, showing the potential cost of noncompliance with applicable wildlife laws such as the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act.

In the past, enforcement of the MBTA has generally been selective and limited to willful or blatant violations. This summer, however, a utility giant and a large oil and gas company both pleaded guilty to violating the MBTA. According to the USFWS, the utility company failed to implement specific, readily available measures for preventing bird electrocutions. The bird deaths caused by the oil and gas company resulted from contact with contaminated open water. Fines and restitution costs for each company run in the millions of dollars.

The MBTA is a very broad statute that makes it unlawful to "take" migratory birds. Permits are granted for certain authorized takings (e.g., hunting), but unlike the ESA, the MBTA does not allow for incidental take. Moreover, the MBTA is a "strict liability" statute, meaning that no intent or prior knowledge is required to result in a violation. The MBTA thus poses a dilemma – it provides no sure way to avoid potential liability for unintentional bird mortality. Project developers and owners assume the burden of responsibility for implementing the most up-to-date recommendations to minimize mortality risk.

Whether it's an increase in the use of wildlife buffers, the concern over cumulative impacts of renewable energy development on endangered species, the need for more wildlife studies, or the frequency of law enforcement, the overall pattern of intensified efforts to minimize wildlife impacts has important implications for renewable energy development.