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Courts Add to Denials of MBTA/BGEPA Claims against Wind Power

Two more courts have ruled against wind power opponents’ claims that federal agencies violated the Migratory Bird Treaty Act (MBTA) by authorizing wind energy projects without first obtaining take permits from the U.S. Fish and Wildlife Service. 

Protect Our Communities Foundation v. Jewell, 2014 WL 1364453 (S.D. Cal. 2014) granted summary judgment in favor of the Bureau of Land Management and Tule Wind LLC, a subsidiary of Iberdrola Renewables, on all counts.  Tule Wind is a 62-turbine project to be located on BLM land in Southern California.  Plaintiffs claimed, among other things, that the BLM violated the MBTA and Bald and Golden Eagle Protection Act (BGEPA) by not obtaining permits under those statutes prior to authorizing the development of Tule Wind. The court denied plaintiffs’ MBTA and BGEPA claims, holding that, “Federal agencies are not required to obtain a permit prior to acting in a regulatory capacity to authorize activity, such as development of a wind energy facility, that may incidentally harm protected birds.”  Id. at *21.   

Protect Our Communities Foundation v. Chu, 2014 WL 1289444 (S.D. Cal. 2014) rejected the same MBTA and BGEPA claims brought against the U.S. Department of Energy and Energia Sierra Juarez U.S. Transmission (ESJ), an entity planning to construct a transmission line spanning the U.S.-Mexico border that is intented to connect a proposed wind power facility in Baja, Mexico to the U.S. grid.  

With the Tule Wind and ESJ decisions, all four courts that have addressed wind power opponents’ claims under the MBTA and BGEPA have denied those claims.  See Pub. Employees for Envtl. Responsibility v. Beaudreu, 2014 WL 985394 (D.D.C., March 14, 2014) (holding that U.S. Bureau of Ocean Energy Management did not violate MBTA by approving the offshore Cape Wind project without first obtaining a permit from U.S Fish and Wildlife Service); Protect Our Communities Found. v. Salazar, 2013 WL 5947137 (S.D. Cal. 2013) (holding that project opponents failed to demonstrate that a permit was required under the MBTA when the BLM approved a 112-turbine wind power project in Southern California). 

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