We begin this Article by discussing the rapid domestic growth of wind power and the implications for turbine-related avian and bat impacts, and then examine other anthropogenic sources of avian mortality. Next, we provide a broad overview of the U.S. wildlife laws most pertinent to the conservation of bats and migratory birds, before moving on to provide a detailed account of the legislative history and judicial interpretation of liability for incidental take under the Migratory Bird Treaty Act (MBTA). We analyze in detail whether a court would be likely to find that the liability provisions for avian take under the MBTA reach wind turbine operators, with the authors providing opposing arguments. We then broaden our view and consider the take of migratory birds by wind turbines in context - that is, we compare the effects of wind turbines on wildlife to the impacts caused by other means of electricity generation. Finally, we suggest a way forward, including recommendations for: updating the regulatory regime under the MBTA with clear permitting requirements and compliance standards; establishing an equally effective legal and regulatory regime for federal bat protection; developing commensurate standards for other energy sources and anthropogenic activities with wildlife impacts; and improving coordination between the wind industry and the United States Fish and Wildlife Service - all in an effort to ensure that wind power, which provides a cost competitive, clean, noncarbon dioxide-producing source of energy, can become a significant fraction of domestic electricity supply while at the same time minimizing avian and bat impacts.
Wind Power, Wildlife, and the Migratory Bird Treaty Act: A Way Forward
Lilley, M.; Firestone, J. (2008). Wind Power, Wildlife, and the Migratory Bird Treaty Act: A Way Forward. Environmental Law Review, 38(4), 101-150.