Wind energy will undoubtedly be a part of America’s future, and this Article examines a set of federal guidelines for siting wind farms. The Wind Turbine Guidelines Advisory Committee Guidelines (WTGAC Guidelines) use an iterative decision-making process to help site wind farms while minimizing the negative impacts to avian and chiropteran species. In particular, the Guidelines provide a head start on the data collection necessary for compliance with the Endangered Species Act and the National Environmental Policy Act. The Department of the Interior must accommodate the American Wind Energy Association’s concerns with the Draft Land-Based Wind Energy Guidelines in order to push the Guidelines’ voluntary label into obsolescence due to near uniform adherence. In addition, the Guidelines must incorporate environmentally friendly technologies into their recommendations or they risk inutility. If the Department of the Interior can produce a set of guidelines that contains the iterative decision-making process of the WTGAC’s Guidelines and can be championed by the American Wind Energy Association (AWEA), then it augurs well for the future of the American wind industry and our nation’s wildlife. A mile up in the sky, a bald eagle spots movement on the banks of a small stream cutting across the canyon floor. The eagle turns along the ridge of the canyon to begin its descent upon its unsuspecting prey. With a quick adjustment in its flight path, the eagle positions itself for the kill and drops precipitously toward the canyon floor. Curved talons grip the flesh of a rabbit, and the eagle lurches skyward to enjoy its meal in its nest atop the canyon wall. Reaching the zenith of its flight takes several minutes, but little effort. The eagle, with blood dripping from the lifeless rabbit, itches with anticipation for its long awaited satiation. A blurred movement catches the eagle’s eye, but only briefly. Suddenly, the eagle is wrenched from the sky by a force greater than any it has ever felt. A spinning blade shatters the eagle’s wing and it plummets to the feet of a monster that even Don Quixote would have avoided. The eponymous talons of the raptor link eagle and rabbit together in death at the foot of this great leviathan. No, this is not the beginning of a work of fiction. Unfortunately, this scene is repeated all too often at American wind farms. To avoid the consequences of anthropogenic climate change, the American people must be weaned off of fossil fuels. Renewable energy sources like wind power can serve our needs with far fewer environmental detriments. It is incumbent upon us to minimize foreseeable and avoidable impacts on wildlife by responsibly siting the coming wind farms. This Article argues that the best way to protect wildlife while producing wind-generated electricity, which is needed to displace fossil fuels, is to create a set of regulations based on the Wind Turbine Guidelines Advisory Committee Guidelines/Recommendations’ (Guidelines) iterative decision-making process. While the political climate today dictates that any wind farm siting regulations will have to be voluntary, this Article will argue that our best hope is to craft the Guidelines in such a way that the AWEA endorses their use. That endorsement should generate sufficient peer pressure among wind developers to make it an industrial faux pas to spurn the Guidelines. The Wind Turbine Guidelines Advisory Committee Recommendations for wind turbine siting will serve as a framework for the analysis of a hypothetical wind farm. This Article will examine how these Guidelines mesh with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA), including the ESA’s required Incidental Take Permits and Habitat Conservation Plans. The Wind Turbine Guidelines Advisory Committee Recommendations are a step in the right direction because of their potential to reduce impacts on endangered and threatened species of birds and bats. However, there is a real need for policy incentives for the wider implementation of vertical axis wind turbines and other alternative designs. By examining the process of siting decisions through the lens of the Wind Turbine Guidelines Advisory Committee Recommendations, the Endangered Species Act’s Section 10 Incidental Take Permits and Habitat Conservation Plans, and the requirements of the National Environmental Policy Act, this Article identifies shortcomings in this process and offers suggestions for implementing a framework that is more protective of wildlife. Used in conjunction, the Wind Turbine Guidelines, NEPA, and the ESA can have positive effects on the siting decisions facing our nation, but only if decision makers produce Guidelines that maintain the wildlife protection benefits of the iterative decision-making process and garner the full endorsement of the AWEA. Providing clean energy while minimizing avoidable impacts on endangered birds and bats is a laudable and attainable goal. Humanity has harnessed renewable wind energy for thousands of years. Early Dutch windmills epitomize the horizontal axis wind turbine design.1 That design has been updated with modern materials to achieve a renewable energy source that produces no direct carbon dioxide emissions.2 As described above, the spinning blades of wind turbines kill birds in a gruesome manner,3 but these turbines are by no means the greatest source of avian mortality.4 The electricity generating efficiency of horizontal axis wind turbines is dictated by the height of the pole upon which the blades rotate; the swept area, which conceptually follows the blade tips in their circular path of rotation; and the wind’s frequency, speed, and direction at the chosen site.5 Wind farm developers can achieve greater efficiency on a per watt basis by erecting larger horizontal axis wind turbine towers. The efficiency of electricity generation, while a major concern in terms of the potential to reduce our nation’s CO2 emissions by narrowing the gap between the price of renewable wind energy and fossil fuel sources, should not be our exclusive concern. The Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) often rear their heads whenever a developer proposes a new wind farm. These two statutes have worked in concert for decades to help preserve and protect the nation’s environment. There is no doubt that the United States needs to make a drastic shift in how it generates electricity if we are to avoid the negative impacts of global anthropogenic climate change. That shift will require that wind energy make up a much larger proportion of the American energy portfolio. However, there needs to be a reconciliation of our efforts to generate cleaner energy with the ideals expressed in the Endangered Species Act, which recognizes that species have aesthetic and moral value on their own.6 The Wind Turbine Guidelines Advisory Committee Recommendations provide a framework for future siting decisions. That framework includes a process of iterative decision making, which takes steps to actively anticipate such seemingly obvious considerations as the migratory path of birds. The Guidelines thereby provide multiple opportunities to make intelligent siting decisions at each Tier. However, these Guidelines contain an underlying bias in favor of horizontal axis wind turbines. That policy-based bias may put many more flying animals at risk than is necessary to achieve the essential shift away from carbon-emitting electricity sources.
Putting Aeolus to work without the death toll: federal wind farm siting guidelines can mitigate avian and Chiropteran mortality
Title: Putting Aeolus to work without the death toll: federal wind farm siting guidelines can mitigate avian and Chiropteran mortality
March 01, 2012
Journal: Journal of Environmental Law and Litigation
Mensing, B. (2012). Putting Aeolus to work without the death toll: federal wind farm siting guidelines can mitigate avian and Chiropteran mortality. Journal of Environmental Law and Litigation, 27(41), 41-105.