First ever prosecution of wind farm for killing eagles and migratory birds

Duke Energy Resources pled guilty to two misdemeanor violations of the Migratory Bird Act.  Duke admits it killed 163 migratory birds protected by the Act at its Campbell Hill and Top of the World wind farms. The company acknowledges it did not take all reasonable steps to reduce the slice-and-dice casualties. Well, the settlement document doesn’t actually say slice-and-dice, but you get the point.

The AP has the best article I’ve seen on the settlement:  Wind farm gets fined for killing eagles. There are a lot of other articles out as well.

The article says this is the first ever prosecution of any wind farm company under the Migratory Bird Treaty Act. That makes this huge news.

You can read the settlement here.

The casualties include counts self-reported by Duke Energy Renewables from 2009 through 2013.

Penalties include:

  • Fine of $400,000 for the two misdemeanors.
  • Restitution to state of Wyoming of $100,000.
  • Perform “community service” by paying $500,000 to three specific charities for specified conservation projects.
  • Probation of 5 years.
  • Development of a “Migratory Bird Compliance Plan” at four wind farms in Wyoming.  The compliance plan will take specific steps to see if the fatality count can be reduced. Expected cost is no more than $600,000 in the first year.
  • Diligently pursue official permission to kill eagles.
  • Non-prosecution for other past and any future takings. Yes, you read that right. Non-prosecution for past and future takings.  Next post will discuss this super sweet part of the plea.

The company press release can be found here. It only attributes the settlement to the 14 eagle deaths.

Putting $1M in perspective

For perspective on that $1M penalty, Duke’s revenue, according to their annual report, in 2012 was $19,524M. Net income was $1,768M. The fine for offing 160 or so migratory birds over the course of three years is equal to one-fifth of net income for one day.

For perspective, the fine for offing an eagle is $250K plus jail time.  Fourteen eagles would be $3.5M.

Dividing the $1M by just the eagle count would be $71K each. Dividing it by the AP’s count of 163 is a mere $6K per protected bird.

If you want to do a full-allocation of the settlement, most of the penalty should be allocated to the value of the non-prosecution agreement for 10 years. That would reduce the per-bird penalty to almost nothing.

Background on the facilities

Campbell Hill facility has 66 turbines rated at 1.5MW.

The statement of fact says that from March 2010 through October 2013, Duke self-reported 58 migratory bird carcasses plus three golden eagle carcasses from this facility. The statement of facts says all injuries are consistent with collision with a turbine blade.

The paragraph says the eagle count is in addition to the migratory bird count. Maybe I missed something, but normal rules of English suggest the eagle count is additive.

Top of the World facility has 66 1.5MW turbines and 44 2.3MW turbines. I calculate that as a 200.2MW capacity (66 x 1.5 + 44 x 2.3).

The statement of fact says Duke predicted in 2009 there would be

…10 raptor takings per 100 megawatts of production per year (or 20 per year for the 200-megawatt project).

Let me rephrase that:  they expected 20 raptor fatalities per year, with golden eagles having the highest exposure.

Paragraph III F of statement of fact says from 9-10 through 10-13, Duke self-reported 106 bird carcasses plus 11 golden eagle carcasses, all of which had injuries consistent with striking a turbine blade. The paragraph says the eagle count is in addition to the migratory bird count.

Here’s my aggregation of the takings:

  • Facility                        total     migratory         golden eagle
  • Campbell Hill               61        58                    3
  • Top of the World        117      106                  11
  • Total                            187      164                  14

The AP article says 163, but what’s a dozen or so dead migratory birds amongst friends?

Lack of reasonable efforts to mitigate slicing-and-dicing

Deeper in the statement of facts is an acknowledgement by Duke that they did not take the usual steps to mitigate takings prior to construction. Several preceding paragraphs identify concerns raised by FWS which were ignored by Duke.

Paragraph IV J says:

The parties agree that the evidence described herein indicates that the takings of eagles and other migratory birds by Duke Energy Renewables at its Campbell Hill and Top of the World wind projects were committed knowingly, inasmuch as the company knew from WEST’s pre-construction wildlife surveys that unauthorized avian fatalities would likely occur as the proximate result of its construction and operation of the projects, and failed to take all reasonable steps prior to operation necessary to avoid and minimize such takings. The Department believes the evidence in this case would support charging and conviction under both the MBTA and the Eagle Act. However, the Department has exercised its discretion to charge Duke Energy Renewables with two misdemeanor violations of the MBTA due to Duke Energy Renewables’ voluntary cooperation during the investigation of this case, its willingness to acknowledge the facts contained herein and enter into the Plea Agreement, the company’s voluntary reporting of unpermitted avian takes, and its significant efforts to minimize and mitigate for past and future takes of golden eagles and other migratory birds at its wind power facilities in Wyoming. (emphasis added)

Let me rephrase that:  Duke knew they would off a lot of birds. They knew they could take extra steps to mitigate the killing but choose not to.

Let me make the point again. Duke Energy got a great deal. They ignored best practices during construction and won’t be prosecuted for past takings or future takings of migratory birds (including eagles) for the next ten years. In return, they pay a nuisance fine ($1M) and promise to implement what are currently best mitigation efforts. Seems to me like a very good deal.

Duke has two other wind farms in Wyoming.  Here is the info mentioned in the statement of facts:

Happy Jack has 14 turbines with 29.4MW capacity. In two years post-construction monitoring, 20 carcasses of migratory birds were found.

Silver Sage has 20 turbines with 42MW capacity. In two years of post-construction monitoring, 4 migratory bird carcasses were found.

Both of those facilities are exempt from prosecution for past takings and future takings through 2023.

Next post: Non-prosecution for future takings.

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