Monday, October 20, 2008
Energy Improvement and Extention Act of 2008
Friday, October 17, 2008
Potential Unlawful conduct regulated by Federal agencies: How are environmental laws enforced by the Federal agencies?
The estimated bird population of the
Within the Federal government the Fish and Wildlife Service (FWS) is charged with monitoring bird populations and enforcing the Migratory Bird Treaty Act (MBTA),[3] the Endangered Species Act (ESA),[4] the Bald and Golden Eagle Protection Act,[5] and the National Wildlife Refuge System Administration Act.[6]
The FWS interprets the National Environmental Policy Act of 1969 (NEPA) to require the Service to prepare Environmental Impact Statements and Environmental Assessments on proposed wind developments.[7] The requirement is triggered by the Services law enforcement duties under the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.[8]
The cumulative effect of legislation protects 836 species. Federal enforcement may seem strong on its face. Current policy states “while any ‘incidental, accidental or unintentional take’ of migratory birds is not permitted by the Service and is a criminal violation of the Bird Migratory Treaty Act, the Service attempts to work with those industries and individuals whose actions result in bird deaths, rather than pursuing criminal prosecution first.”[9] The reality of Fish and Wildlife Service enforcement efforts are quite different.
FWS readily admits that to date “No wind turbine operator has ever been prosecuted for killing birds.”[10] Current efforts to stem bird death are in the planning stages and are not expected to take effect until 2009.[11] The current political climate in
Despite lack of enforcement the MBTA and the Bald and Golden Eagle Protection Act provide for significant strict liability sanctions for violations. Penalties under the Bald and Golden Eagle are up to 2 years imprisonment and $10,000, with sanctions doubled if the violator is an organization.[12] Violations of the MBTA can result in a $15,000 fine and 6 month imprisonment for a misdemeanor and 2 years and $250,000 fine for a felony offence.[13] Any developer must take such stiff penalties, despite lack of apparent enforcement seriously.
[1] Migratory Bird Treaty Act, 16 U. S.C. §§703-712
[2] Migratory Bird Mortality: Many Human-Caused threats Afflict Our Bird Populations, Fish and Wildlife Service, http://birds.fws.gov,
[3] Id.
[4] The Endangered Species Act, 16 U.S.C. 1531-1544; (1973)
[5] Bald and Golden Eagle Protection Act, 16 U.S.C. §§668-668d
[6] The National Wildlife Refuge System Administration Act (16 U.S.C. 668dd
[7] Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from
Wind Turbines, Memorandum Ref: FWS/DFPA/BFA
Fish and Wildlife Service,
[8] Migratory Bird Treaty Act, 16 U. S.C. §§703-712, and Bald and Golden Eagle Protection Act, 16 U.S.C. §§668-668d
[9] Migratory Bird Treaty Act, 16 U. S.C. §§703-712
[10] Off-the-record source within Fish and Wildlife Service, Law Enforcement Office.
[11] Fish and Wildlife Service, http://www.fws.gov/habitatconservation/wind.pdf
[12] Bald and Golden Eagle Protection Act, 16 U.S.C. §668(a)
[13] Migratory Bird Treaty Act, 16 U. S.C. §§703-712
Planning considerations with federal agencies: What considerations of federal law should developers be aware of?
Wind generation projects must evaluate any proposed site for compliance with federal regulations. Federal regulations governing development are site specific requiring an analysis of the surrounding area for conflict.
The height of wind towers may require lighting to comply with the Federal Aviation Administration (FAA) regulations. The FAA requires sites near airports to mark structure to avoid aircraft collisions. Current regulations focus on generic structures however, proposed regulations address wind generators directly.[1]
Any federal agencies may require Environmental Impact Statement or Environmental Assessments for proposed wind power development in environmentally protected areas such as historic sites, national parks, and other areas designated by agencies for protection.[2] Assessments and Impact Reports are triggered by danger to the protected locale.
The National Historic Preservation Act of 1966 established the National Registry of sites of national historic interests.[3] The act requires all federal, state, and municipal agencies to consider the impact to sites on the National Registry. Proposed wind power generator developments near historic sites must file an Environmental Impact Statement (EIS) and an Environmental Assessment (EA) on the impact of development to nearby protected sites.
[1] Development of Obstruction Lighting Standards for Wind Turbine Farms,
DOT/FAA/AR-TN05/50 Federal Aviation Administration,
[2] The National Environmental Policy Act, 42 U.S.C. §§4371 (1969), see also; The Endangered Species Act 16 U.S.C. §§1531-1544 (1973), and The National Wildlife Refuge System Administration Act 16 U.S.C. §§668dd
[3] The National Historic Preservation Act, 16 U.S.C. §§470-470b, 470c-470n (1966)
Federal Industry Incentives: What current federal regulations address wind power generation?
Current federal regulations addressing wind power focus on initiatives to promote industry expansion and environmental acts designed to protect endangered or migrating flora and fauna.
The federal government has identified certain renewable electricity projects for tax incentives to spur growth. Tax incentives enacted in 2006 and extended for 2007 [Now Expires December 31st 2009] allow qualified taxpayers to seek refunds for wind related activities dating back to before 1996. The Productions Tax Credit currently provides incentives per kilowatt hour for the first 10 years of operations.[1]