Wind farms get pass on eagle deaths; 83,000 hunting birds killed each year
The tactics have created an unexpected rift between the administration and major environmental groups favoring green energy that, until the eagle rule, had often been on the same side as the wind industry.
Those conservation groups that have been critical of the administration's stance from the start, such as the American Bird Conservancy, have often been cut out of the behind-the-scenes discussions and struggled to obtain information on bird deaths at wind farms.
"There are no seats at the exclusive decision-making table for groups that want the wind industry to be held accountable for the birds it kills," said Kelly Fuller, who works on wind issues for the group.
The eagle rule is not the first time the administration has made concessions for the wind-energy industry.
Last year, over objections from some of its own wildlife investigators and biologists, the Interior Department updated its guidelines and provided more cover for wind companies that violate the law.
The administration and some environmentalists say that was the only way to exact some oversight over an industry that operates almost exclusively on private land and generates no pollution, and therefore is exposed to little environmental regulation.
Under both the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act, the death of a single bird without a permit is illegal.
But under the Obama administration's new guidelines, wind-energy companies — and only wind-energy companies — are held to a different standard. Their facilities don't face additional scrutiny until they have a "significant adverse impact" on wildlife or habitat. But under both bird protection laws, any impact has to be addressed.
The rare exception for one industry substantially weakened the government's ability to enforce the law and ignited controversy inside the Interior Department.
"U.S. Fish and Wildlife Service does not do this for the electric utility industry or other industries," Kevin Kritz, a government wildlife biologist in the Rocky Mountain region wrote in government records in September 2011. "Other industries will want to be judged on a similar standard."
Experts working for the agency in California and Nevada wrote in government records in June 2011 that the new federal guidelines should be considered as though they were put together by corporations, since they "accommodate the renewable energy industry's proposals, without due accountability."
The Obama administration, however, repeatedly overruled its experts at the Fish and Wildlife Service. In the end, the wind-energy industry, which was part of the committee that drafted and edited the guidelines, got almost everything it wanted.
"Clearly, there was a bias to wind energy in their favor because they are a renewable source of energy, and justifiably so," said Rob Manes, who runs the Kansas office for The Nature Conservancy and who served on the committee. "We need renewable energy in this country."
The government also declared that senior officials in Washington, many of whom are political appointees, must approve any wind-farm prosecution. Normally, law-enforcement agents in the field have the authority to file charges with federal attorneys.
While all big cases are typically cleared through headquarters, such a blanket policy has never been applied to an entire industry, former officials said.
"It's over," Eicher said. "You'll never see a prosecution now."
Not so, says the Fish and Wildlife Service. It said it is investigating 18 bird-death cases involving wind-power facilities, and seven have been referred to the Justice Department. A spokesman for the Justice Department declined to discuss the status of those cases.
Dan Ashe, the Fish and Wildlife Service's director, in an interview Monday with The Associated Press said his agency always made it clear to wind companies that if they kill birds they would still be liable.