Law Offices of
Rodenhausen Chale & Polidoro LLP

According to the Endangered Species Coalition, today, May 16, is Endangered Species Day, a day to focus on the challenge of protecting and promoting recovery of threatened and endangered species around the world. In that spirit, we note today the need to minimize the potential conflict between alternative energy sources needed to combat climate change and the potential impacts on threatened and endangered species.

Wind energy has for some time been in potential conflict with migrating birds. In a stunning example, last November a subsidiary of Duke Energy pleaded guilty in U.S. District Court to violating the federal Migratory Bird Treaty Act (MBTA) at two of its wind energy projects in Wyoming containing 176 large wind turbines. According to a Department of Justice release, this was the first criminal enforcement of the MBTA in the country for unpermitted bird kills at wind projects.

The bird kill allegedly included 14 golden eagles between 2009 and 2013, along with 149 other protected species, including hawks, blackbirds, larks, wrens and sparrows. The Golden Eagle is not listed as threatened or endangered under the Endangered Species Act, indeed its conservation status is considered secure by NatureServe, but it is protected under the Bald and Golden Eagle Protection Act (16 U.S.C. 668–668d)(“Eagle Act”), which prohibits the take of bald and golden eagles unless under a permit issued pursuant to the Act.

Duke was fined $400,000 which will go to the North American Wetlands Conservation Fund, will pay $100,000 in restitution to Wyoming, and will perform community service by making a $160,000 payment to the National Fish and Wildlife Foundation. They must also contribute $340,000 to a conservation fund for the purchase of land or conservation easements on land containing high-use golden eagle habitat. Finally, they must implement a migratory bird compliance plan during the five years they are placed on probation, and they must apply for a take permit under the Eagle Act, which will hopefully minimize future conflicts.

According to the release, Duke “failed to make all reasonable efforts to build the projects in a way that would avoid the risk of avian deaths by collision with turbine blades, despite prior warnings about this issue from the U.S. Fish and Wildlife Service (USFWS).” In the plea agreement, Duke “acknowledges that it constructed these wind projects in a manner it knew beforehand would likely result in avian deaths.”

This is a conflict that can and must be minimized. The USFWS has issued guidance on how wind projects can avoid impacts. The Land-Based Wind Energy Guidelines were released by USFWS on March 23, 2012, and the Eagle Conservation Plan Guidance in April 2013. There is no reason to hold up well-designed wind energy projects based on conflicts with migratory bird routes.

In a major decision by the Appellate Division, Third Department, Gabrielli v. Town of New Paltz, the court upheld the Town’s Wetlands and Watercourse Protection Law against SEQRA and constitutional due process challenges.  Two key issues raised by the petitioners were whether the wetlands mapping done by the Town before enactment of the law gave landowners sufficient notice of the possible presence of wetlands on their property and whether vernal pools could be regulated.  In finding that the mapping was sufficient, the court noted that although the maps were only approximations, the Town had used all available resources in preparing the maps. In addition, the law provided that landowners were entitled to a free wetlands determination on their property by the Town Wetlands Inspector. 

In upholding the regulation of vernal pools, the court held that even though vernal pools may exist for only two months out of a year, the definition of a vernal pool was sufficiently precise to give landowners proper notice, again backed by the free determination by the Wetlands Inspector.

Professor Dan Estrin, Pace Law School, who filed an amicus brief on behalf of the Riverkeeper, said in an email to the Town on 4/24, “This decision is very important not only for residents of the Town of New Paltz, but also for so many similarly situated municipalities that may previously have been reluctant to adopt similar local laws out of fear of litigation.  We hope the court’s decision today will encourage additional protection of the State’s natural resources by emboldening other municipalities that may previously have been ‘gun-shy.’”

According to a release from the Environmental Protection Agency, Scotts Miracle-Gro was sentenced today to pay the highest criminal penalty and the highest civil penalty in the history of the federal pesticide program for eleven criminal violations of the Federal Insecticide, Fungicide, and Rodenticide Act "(FIFRA"). Scotts pleaded guilty to "illegally applying insecticides to its wild bird food products that are toxic to birds, falsifying pesticide registration documents, distributing pesticides with misleading and unapproved labels, and distributing unregistered pesticides."

In addition to paying a criminal penalty of $4 million, Scotts agreed to pay more than $6 million in civil penalties and spend $2 million on environmental projects to resolves additional civil pesticide violations. EPA said the penalties were appropriate for the "widespread company noncompliance with pesticide laws."

How does this happen? Scott's is the worlds largest marketer of residential pesticides, who you would think as a corporation would want to protect its reputation. However, Scott's admitted to applying a pesticide to its bird food products during storage even though the warning label stated the pesticide was "extremely toxic to fish and toxic to birds and other wildlife.” The illegally treated bird seed was sold for two years, even six months after an employee warned management of the dangers to wildlife.

Aside from the fact that they were caught, the only good news is that Scott's is contributing $100,000 each to the Ohio Audubon’s Important Bird Area Program, the Ohio Department of Natural Resources’ Urban Forestry Program, the Columbus Metro-Parks Bird Habitat Enhancement Program, the Cornell University Ornithology Laboratory, and The Nature Conservancy of Ohio to support the protection of bird populations and habitats through conservation, research, and education.

The existence of "widespread company noncompliance" in the country's major marketer of residential pesticides gives pause. What level of million dollar penalties is needed for it to become economically advantageous to follow the law?

On August 23rd, Mayor Bloomberg and George Mitchell, the designer of hydraulic fracturing for nature gas, announced in an op-ed article in the Washington Post that through their foundations they are supporting research to make fracking safe. A day later the New York Times reported that Bloomberg Philanthropies was giving $6 million to the Environmental Defense Fund to get stronger regulations in the states that now allow fracking. Mitchell's foundation is contributing $1.6 million.

Bloomberg successfully opposed fracking in the New York City watershed and has opposed fracking in the Delaware River Basin. His turnabout seems to be based at least in part on his strong opposition to coal buring power plants and the air pollution they have caused in the northeast. In the Post article, Bloomberg and Mitchell cite for reasons for their support:

• The new supply of natural gas through fracking should reduce the price of energy to consumers:
• It should spur industrial job growth by lowering energy costs;
• It will reduce dependence on coal, which should improve air quality and fight climate change; and
• It allows renewable energy to be integrated more easily into the electric grid.

The article calls for five principles for sensible fracking:

• Full disclosure of chemicals used in the fracking process;
• Better regulation of well construction and operation;
• Minimal water consumption, protection of groundwater, and safe disposal of flowback;
• Improved air pollution controls by stopping the leaks of methane to the atmosphere; and
• Reduced impacts on roads, ecosystems and communities.

EDF has been active on fracking for some time. The five principles announced by Bloomberg are already being advanced by EDF in their fracking critique, Getting It Right. EDF has a history of stepping up to work with industry. Memorably, in 1990 EDF worked with McDonald's to find a way to reduce the solid waste produced by their restaurants, including elimination of the polystyrene "clamshell" package for hamburgers. One can only hope their work here will bring safer operations to states already authorizing fracking and cause those not yet fracking to wait for improved regulations and policies. Unfortunately, the more they succeed, the less competitive become alternative energy sources.