For nearly ten months, the Committee on Natural Resources has been conducting oversight into the enforcement policies and practices of the U.S. Fish & Wildlife Service (“FWS”) and the Department of Justice (“DOJ”) concerning the Bald and Golden Eagle Protection Act (“BGEPA”) and the Migratory Bird Treaty Act (“MBTA”). The Committee has been reviewing the Obama Administration’s policies for enforcing these historic laws in order to understand their impact on current and future domestic energy.
Throughout the course of the investigation, the Committee has sent multiple letters to the FWS and the DOJ requesting documents and interviews with relevant persons who would have knowledge of how the agencies enforce the BGEPA and MBTA.
It took the FWS more than four months before it provided fewer than 70 pages of emails and other communications with a wind industry trade association and more than six months to provide a copy of a two-page policy memorandum issued by the Chief of its Office of Law Enforcement in October 2012. In December 2013, the FWS also made available to the Committee copies of approximately 1,060 pages of documents – many of them redacted – that had also been recently provided to the public under the Freedom of Information Act (“FOIA”). Most of these FOIA documents concerned meetings between the Department of the Interior and representatives from the wind industry and environmental groups. The continued dilatory tactics employed by the FWS and unresponsive and redacted productions have left the majority of the Committee’s original requests unanswered and unaddressed. DOJ has not provided any documents in response to the Committee’s requests.
On January 16, 2014, the Committee voted 26-14 to authorize the Chairman to issue subpoenas for documents and testimony for several ongoing oversight matters, including the investigation into the implementation and enforcement of the BGEPA and MBTA. Letters were sent to both the FWS and DOJ on February 14, 2014 providing a final opportunity to comply voluntarily with the Committee’s information requests. On March 10, 2014, the FWS provided approximately 1,000 pages of avian mortality reports that have been claimed as confidential business information, correspondence with the wind industry and environmental groups, and additional redacted internal emails and memoranda.
The MBTA was implemented in 1918 pursuant to a treaty with the United Kingdom to protect migratory birds. The BGEPA was enacted in 1940. The MBTA and the BGEPA are strict liability statutes that prohibit the taking of migratory birds and bald and golden eagles within the United States, respectively. As strict liability statutes, any unauthorized take that occurs – be it intentional or unintentional – will violate the acts. For the purpose of these statutes, “take” occurs when any person or entity pursues, hunts, shoots, wounds, kills, traps, captures or collects a migratory bird or eagle. Under the BGEPA, anyone who disturbs, agitates or bothers an eagle to a substantial degree also commits “take.” Any person or entity that violates the MBTA or any regulation made pursuant to the MBTA is “deemed guilty of a misdemeanor” and “shall be fined not more than $15,000 or be imprisoned not more than six months, or both.” BGEPA provides that each unpermitted take can incur a penalty of up to $5,000, one year in prison, or both per take.
Both the MBTA and BGEPA direct the Secretary of the Interior to develop regulations from time to time when take of migratory birds and eagles would be permitted.
As such, the Obama Administration issued a rule in 2009 that authorized 5-year take permits for under the BGEPA. In March 2012, the FWS finalized Land-Based Wind Energy Guidelines (“WEG”) as a means for wind developers to develop a “structured, scientific process for addressing wildlife conservation concerns.” The FWS supplemented the WEG with the Eagle Conservation Plan Guidance (“ECPG”) in May 2013, which provides wind developers a more in-depth, specific guide for conserving bald and golden eagles. In December 2013, the FWS revised the 2009 take rule and extended the duration of a take permit for up to 30 years.
To date, no eagle take permits have been issued. In November 2013, the DOJ announced a plea agreement involving Duke Energy Renewables Inc. in connection with the deaths of protected migratory birds and golden eagles at two wind energy projects in Wyoming, the only such enforcement case that has been brought to date involving the wind energy industry. The Committee’s oversight has examined how the FWS and DOJ have enforced the BGEPA and MBTA – in light of the strict liability requirements of the statutes – prosecuting only select violations of the acts.