POWER July 2015 - 26

Gerald George
F
Increasing Environmental
Challenges for Renewable
Energy
or decades, renewable energy sources-primarily wind and
solar-have been touted as the answer to continued reliance
on fossil fuels. The technology has substantially improved, reducing
unit costs, and state-imposed requirements have increased
demand, enabling increased production to be sustainable.
This expansion has come with the recognition that it also has
environmental consequences. Wind farms threaten birds, particularly
golden eagles and hawks. Most recently, environmental
groups have questioned the impact of certain California solar
facilities on birds and the endangered desert tortoise.
Regulatory agencies, while continuing to encourage expansion
of renewable facilities, have endeavored to better protect the environment.
These initiatives include development of plans for optimal
siting of renewable facilities within fragile ecosystems and
the development of written best management practices (BMPs) for
wind farms. However, the initial response of the environmental
community has been increased opposition. As a result, environmental
impacts have emerged as a critical factor for successful
development of renewable energy projects due to the delays in
permitting and corresponding ability to obtain financing.
Enforcement Policies
Challengers to renewable projects have typically asserted objections
based on the Migratory Bird Treaty Act (MBTA), the Bald
and Golden Eagle Protection Act (Eagle Protection Act), and the
Endangered Species Act (ESA).
The MBTA is a criminal statute of impressive breadth, prohibiting
take of more than 1,000 species, and imposing nearly strict liability
for misdemeanor violations. The Eagle Protection Act is narrower in
coverage and requires a " knowing " violation for criminal liability.
In enforcing these statutes, the Fish and Wildlife Service (FWS)
has used its prosecutorial discretion to limit actual enforcement
actions and has focused on increasing awareness of bird protection
and requiring " best practices. " Notably, in the only two
actions initiated against wind farms, the FWS asserted MBTA
violations, while the eventual settlements focused on protecting
golden eagles, including requiring that the facility obtain an
Eagle Protection Act permit. The apparent logic is that an MBTA
violation is more easily proven while the protections afforded by
compliance with a permit under the Eagle Protection Act incidental
take program likely extend to additional species.
Environmental groups have been largely absent from the enforcement
of bird protection. Other than the ESA, the statutes are
without citizen suit provisions. Environmental groups have thus
turned to the permitting process to voice their objections to the
impacts of wind and solar facilities on birds and other wildlife.
Regulatory Response
The FWS continues to support increased renewable capacity and has
also focused on identifying suitable locations for wind and solar facilities.
These initiatives include identifying areas with the least environmental
impact, developing detailed BMPs for wind and solar facilities,
26
and incorporating those practices into incidental take permits.
For instance, the proposed Desert Renewable Energy Conservation
Plan identifies about 2 million acres out of a much larger
portion of southern California desert as suitable for development.
The FWS is also developing best practices for these facilities.
While compliance with those BMPs is not equivalent to a permit
shield, as a practical matter, given the FWS use of enforcement
discretion, a facility developed and operated consistent with the
guidance is highly unlikely to face enforcement.
To facilitate the needs of project developers for financing, the
FWS has increased the period for Eagle Protection Act permits
from the initial 5-year maximum to up to 30 years. The FWS has
also been responsive to public comment about the economic impact
of ESA listings. The FWS recently listed the long-eared bat
as threatened, not endangered, despite concern that the bat's
population has been devastated, and is using its authority to
issue a 4(d) rule to allow certain potentially harmful activities
even though they occur within the range of the bats.
Moving Targets
These efforts, however, do not offer silver bullets for project
sponsors. Neither the environmental conditions nor the regulatory
environment are likely to be static. A 30-year eagle incidental
take permit provides significant certainty, but it will also likely
be subject to periodic reviews, which could impose enhanced
requirements to reflect updated information on eagle mortality
and improvements in technical responses.
Similarly, the BMPs for facilities continue to evolve (significantly,
the FWS has announced it will be " re-evaluating " its
eagle management program, and more recently, it has provided
notice that it is evaluating the environmental impacts of issuing
programmatic incidental take permits under the MBTA). The
ESA status of species can also change. For instance, if the longeared
bat population continues its precipitous decline, demands
will undoubtedly be made that the FWS list it as endangered,
requiring greater protection. Any and all of these issues could
present issues for facility operators, potentially requiring expensive
reconfiguration of a facility or the institution of restrictive
operational practices to reduce bird mortality.
In addition, it can be expected that any agency initiative to
facilitate permitting of renewable facilities will be judicially challenged
by environmental groups, inevitably resulting in delays
in construction and typically requiring modification of preferred
siting and operational configurations. Ironically, these environmental
challenges are increasing just as it appears that the industry
has achieved economic viability and operating success.
The desired future growth of renewable facilities will continue to
test both project developers and regulatory bodies to continue to
lessen the impacts on birds and other species. ■
-Gerald George (geraldgeorge@dwt.com) is a partner in Davis
Wright Tremaine's energy and environmental practice group in the
firm's San Francisco office.
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POWER | July 2015
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POWER July 2015

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