In 2002, California established its Renewable Portfolio Standard Program (RPS), arguably one of the more ambitious and progressive state renewable energy standards in the US. Aimed at curbing climate change and dependence on fossil fuel, the RPS required all “retail seller of electricity, […] purchase a specified minimum percentage of electricity generated by eligible renewable energy resources [.]” At first, the RPS set the minimum percentage at 20% by 2017, but in 2006, Senate Bill 107 codified 2003 Energy Action Plan I, accelerating the 20% deadline from 2017 to 2010.
On November 17, 2008, Executive Order S-14-08, signed by Governor Arnold Schwarzenegger, revised California RPS by requiring that utilities reach a 33% renewable goal by 2020. To achieve this ambitious goal, California will have to rely on several different types of renewable energy sources — and a lot of them. Abundant with natural resources, California’s renewable energy resource arsenal includes wind, solar, geothermal, biomass and hydroelectric facilities.
Currently, California has more than 13,000 wind turbines generating electricity in the state. Of those 13,000, 95% are located in three main areas: Altamont Pass, Tehachapi, and San Gorgonio. A four year research project by BioResource Consultants (2006) (hereinafter BRC Report) conducted at the Altamont Pass Wind Resource Area (APWRA) found that “electricity-generating wind turbines installed in the APWRA kill large numbers of birds of many different species [.]” In 2009, U.S. Secretary of the Interior Ken Salazar renewed the Wind Turbine Guidelines Advisory Committee (WTGAC) to “provide advice and recommendations to the Secretary on developing effective measures to avoid or minimize impacts to wildlife and their habitats related to land-based wind energy facilities.” The WTGAC released a final report (hereinafter WTGAC Report) on May 4, 2010 finding that “[wind energy] is likely to have serious negative impacts on ecosystems and wildlife.” Additionally the WTGAC Report concluded that “[while the US moves to expand wind energy] it also must maintain and protect the nation’s wildlife and habitats [.]”
The BRC report highlights a high death rate of both state and federally protected bird species at the APWRA facility. These species include: raptors, bald eagles, golden eagles, and red-tail hawks. Extrapolating the BRC Report’s data and applying it to the other wind energy facilities in California and the U.S., it is not a stretch to conclude that every single wind energy facility is in clear violation of some combination of the Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and the U.S. Bald & Golden Eagle Protection Act (BGEPA). It is important to note that both federal and state agencies refuse to prosecute these violations, which in turn reduces the likelihood of compliance with wildlife protection statutes.
California and the federal government, by passing wildlife protection statutes, have announced their concerns and wishes to protect wildlife. Alternatively, California and the federal government have also announced their wishes to increase the development of renewable energy, in particular wind energy. According to U.S. Secretary of the Interior Ken Salazar, “[wind power is a] key[s] to America’s clean energy future.” Although these two policies don’t seem to conflict, both being pro-environment, they are in fact at odds with each other. The issue is best stated as wildlife v. renewable energy.
In order for California to achieve its new renewable energy policy, an increase in the number of wind turbines in California is virtually certain. Taking this into account and the current bird morbidity rates from existing turbines, the number of birds killed will increase proportionality and likely have a significant impact the viability of certain endangered and threatened bird species in California. This is simply unacceptable and inconsistent with the policies laid out in the both federal and state wildlife statutes. Therefore, California must strike a balance between protecting wildlife and continuing on its path of harnessing wind energy.
The two previously mentioned reports, the WTGAC and BRC reports, approach the issue of wind energy’s negative impact on birds very differently. The WTGAC report addresses wildlife and their habitat generally; while the BRC report address the morbidity rates of bird specifically. The WTGAC reports recommendations are divided into two categories: policy recommendations and voluntary guidelines for wind siting and operations. These policy recommendations and guidelines address future wind farm developments while the BRC report provides scientifically-based mitigation measures for reducing bird mortality at existing wind turbine facilities. A few mitigation measures from the BRC report are: cease rodent control, the installation of flight diverters, and for a reduction of vertical and lateral edges in slope cuts and nearby roads. Although the BRC report provides some great mitigation measures that I believe should be implemented at existing wind farms, the WTGAC report will be the subject of future analysis.
The WTGAC report provides a tiered approach to assessing potential impacts to wildlife and their habitats. This tiered approach gives developers a framework for determining the level of impact on wildlife and their habitats prior to the building of a wind energy facility.
The committee recommends that “incentives be given to developers that implement this voluntary tiered approach.” The committee believes “that the [report] reflects a comprehensive and user-friendly risk assessment and decision making tool that supports the Department of the interior priorities with respect to renewable energy development […] and the needs of federal or state listed wildlife and habitats, without creating new regulations.” Lastly, the committee believes “[these] guidelines will achieve minimal impacts to wildlife and habitats, while providing the flexibility to develop the nation’s wind energy resources.” In a nutshell, the committee is recommending self-regulation by the industry.
Assuming the substantive guidelines and recommendations provided in the report will actually benefit wildlife; the real question is whether self-regulation is the appropriate model and approach to protecting wildlife from future wind energy development. Additionally, self-regulation begs the question: what is the likelihood of adherence by the industry and should we be worried about the fox guarding the hen house?
Self-regulation is not a new concept. “In the last twenty years, environmental self-regulatory programs have proliferated in both the U.S. and abroad.” (M. Lenox, 2006). In an attempt to avoid future government regulation, many industries prefer self-regulation. The government, in an attempt to avoid the cost of developing and monitoring a complex regulatory framework, has promoted industry self-regulation. The WTGAC report follows this trend by asking the Secretary of the Interior to adopt the committees “voluntary guidelines.”
The self-regulation approach for implementing the WTGAC‘s guidelines is appropriate, but only if there is an increase in the enforcement of federal and state wildlife laws, and the incentives suggested by the committee outweighs the undue burden of implementing the guidelines. There are three factors, if present, that will motivate the wind energy industry to successfully self-regulate themselves by adopting the WTGAC guidelines: 1) the looming fear of future governmental regulation, 2) incentives for self-regulating, and 3) security from MBTA and BGEPA prosecution (safe harbor agreement). None of these factors alone will cause the industry to self-regulate, but the combination of all three will likely increase that chance.
Factor one is present and evidenced by the numerous government commissioned reports on the need for increased wildlife protection from renewable energy development. Additionally, the increased media coverage of the negative impacts of wind turbines on wildlife will likely cause an outcry from the public urging their legislators to act. Factor two is also present and while the committee doesn’t lay out specific incentives, the committee does recommend the implementing of incentives as part of the guidelines. Factor three is the biggest issue.
While the committee does discuss the current inconsistency and lack of compliance with federal and state wildlife laws, all it recommends is that the Department of Interior adopts the following statement:
Consideration of the Guidelines in MBTA and BGEPA Enforcement
“USFWS urges voluntary adherence to the guidelines and communication with USFWS when planning and operating a facility. USFWS will regard such voluntary adherence and communication as evidence of due care with respect to avoiding, minimizing, and mitigating significant adverse impacts to species protected under the MBTA and BGEPA, and will take such adherence and communication fully into account when exercising its discretion with respect to any potential referral for prosecution related to the death of or injury to any such species […]”
Providing safe harbor agreements and reducing the risk of prosecution and liability under federal and state wildlife statutes would be a huge benefit for industry, but only if the threat of liability and prosecution is real. The BRC and WTGAC both report the illegal taking of birds in direct violation of federal and state law, but there have been no punishments for those violations. Therefore, federal and state wildlife laws need to be enforced before the offering of safe harbor agreements will entice industry to self-regulate. Without any real fear of prosecution or liability, the industry won’t see factor three as a real benefit and that decreases the likelihood of them adopting the guidelines and self-regulating.
If there is an increase in the enforcement of federal and state wildlife laws, and the incentives provided by the government outweighs the undue burden of implementing the guidelines, then California should adopt the WTGAC’ guidelines and use a self-regulatory approach for implementing these guidelines.
