DOJ Sentences NextEra Energy for “Blatant Disregard”, Killing 150 Eagles

*This article was updated on April 14, 2022 to include the responses of NextEra Energy and its President & CEO, Rebecca Kujawa.

Legal protection of Bald Eagles in the United States began with the passage of the Migratory Bird Treaty Act of 1918. The MBTA prohibits the “taking” of migratory birds, including bald and golden eagles, without a permit from the U.S. Fish and Wildlife Service of the Department of the Interior. start of Yellow highlighter annotation.“Take” is defined by regulation to mean “to pursue, hunt, shoot, wound, kill, trap, capture or collect” or to attempt to do so.

Eagles were further protected by the Bald and Golden Eagle Protection Act in 1940, which prohibits the killing or possession of these eagles, their feathers, eggs, or nests. As The Weather Channel reports, “even tampering with their nest is a federal offense.” In 1978, the Endangered Species Act was expanded to include the Bald Eagles in the contiguous 48 states. Two decades later, in 1997, the Bald Eagle population had recovered to 5,295 breeding pairs in the lower 48.

In 2007, Interior Secretary Dick Kempthorne announced the delisting on the steps of the Jefferson Memorial in Washington, DC. Mr. Kempthorne did not anticipate one thing - wind farms.

Wind Farms Killing Eagles

Precise figures are impossible, but a wildlife society bulletin estimated 573,000 birds are killed by the country’s wind farms each year, including 83,000 hunting birds like the eagle.

Through 2013, companies operating these turbines had yet to be fined or prosecuted even though every death is a criminal violation. That changed on November 23, 2013 when Duke Energy Renewables pleaded guilty to killing eagles and other birds at two Wyoming wind farms. Nearly a decade more passed before the next wind turbine operator was held accountable and, on April 5, 2022, the Department of Justice announced that ESI Energy Inc, a wholly-owned subsidiary of NextEra Energy, had been sentenced for violations of the Migratory Bird Treaty Act (MBTA). NextEra Energy Resources is the world's largest generator of clean, renewable wind energy.

NextEra, “the world’s largest generator of clean, renewable wind energy”, plead guilty to three counts, each based on documented deaths of golden eagles due to blunt force trauma from being struck by wind turbine blades at sites in Wyoming and New Mexico.

According to the filing, there are some alarming facts in this case:

ESI acknowledged that at least 150 bald and golden eagles had died by its hand since 2012 across 50 of its 154 wind energy facilities. 91% of those deaths were determined to be attributable to the eagle being destroyed by a wind turbine blade.
ESI showed a “blatant disregard of wildlife laws”
ESI and its affiliates deliberately elected not to apply for or obtain any ETP intended to ensure the preservation of bald and golden eagles, and instead chose to construct and operate facilities it knew would take eagles, and in fact took eagles, without any permits authorizing that take.
ESI, by not regarding wildlife laws, “gained a competitive advantage relative to those wind companies [that did observe wildlife laws].”
The USFWS informed ESI that their siting “could result in the collision mortality of 44 golden eagles and 23 bald eagles over the first five years of operations, and recommended that, because of the unusually high number of occupied golden eagle nests, the proposed wind facilities not be built.”
“USFWS also recommended that, if the wind project was built, the project should implement seasonal curtailment during daylight hours. The defendant did not implement the recommended curtailment.”
No Eagle Take Permit was sought by or issued to ESI in connection with the operations or repowering of any facilities.

These revelations show the stunning lack of regard for our laws by a company that boasts about how much it cares for the bird and bat populations. One of NextEra Energy’s tweets reads, “we are researching how wind power can coexist with bird and bat populations. Our partners are TCU and Oxford University.”

These numbers are also a very rare glimpse into the opaque world of bird kills by the wind industry.

Concealment Through Lobbying and Lawsuits

The wind industry has taken extensive steps to conceal this information and keep it secret from the public.

After years of fighting the U.S. Fish & Wildlife Service, the wind industry won a favorable ruling in 2016 when the USFWS awarded a final ruling that modified the “preservation standard” of the Bald and Golden Eagle Protection Act. It increased the tenure of the programmatic killing of eagles from 5 years to 30 years, without requiring the industry to share mortality data with the public or take into consideration such critical factors as proper citing.

Moreover, when there is a risk that information might be made public, the wind industry threatens and sues state agencies to make sure this data is concealed as was the case in Ohio in 2016. An Ohio wind farm filed a lawsuit against two state agencies, hoping to conceal the number of bird deaths caused by its operation.

To complicate matters, federal wildlife officials routinely tell wind companies privately that they will not be prosecuted for harassing or even killing endangered species. Scientists also say bird deaths are being undercounted because scavengers like coyotes quickly eat them and because body parts are often outside the “search radius” which is too small.

As Lisa Linowes, executive director for Wind Action Group, recounts, “walking around the turbines, they discovered bat carcasses strewn throughout the site. When the project owner recognized what they were looking at, the researchers were escorted off the site and the gate was locked behind them.” [Shellenberger, Michael. Apocalypse Never (p. 194). Harper. Kindle Edition.]

What appears to be a very large Condor is killed by a wind turbine.

This confirms other research suggesting golden eagles are at risk in the western united states. “The influence of energy development, particularly wind energy, taken together with other anthropogenic sources of mortality, including electrocution on power distribution lines, contaminants, collisions with vehicles, and illegal shooting, may be resulting in declining Golden Eagle populations.”

Wind Turbines Effect Upon Protected Bird and Other Vital Populations

The Fish & Wildlife Service admits, “enforcement alone is an inefficient means to manage and conserve eagles nationwide and is constrained by our limited law enforcement resources.” That might be why its own estimate shows that the golden eagle population in the Western United States, where most wind farms operate, is declining.

As its 2016 final ruling reads, “the Service set the take for golden eagles at zero” since the “golden eagle populations could not sustain any additional unmitigated mortality.” The Altamont Pass in California is estimated to kill 35 golden eagles each year. This is according to 2013 estimates by the local county. The Altamont Pass is a population sink; it’s killing more eagles than the local population can reproduce.

In addition to golden eagles, other predatory large birds are in harm’s way. The Red Kite is endangered and wind farms pose the biggest threat to its existence. California’s Altamont Pass has also been ruled a population sink for the burrowing owl. In the United Kingdom, wind turbines killed a White-Throated Needletail. There had been only 8 reported citings of this bird in the United Kingdom in nearly 170 years. Had bird-watching enthusiasts not been on-site to witness its demise, the wind company would have never reported it.

It’s not just rare and protected birds, either. Millions of vital insects are being wiped out each year along their migratory pathways, too. Wind companies will tell you that insects don’t fly high enough to find their way into harm’s way. That’s not true, either. In Oklahoma, scientists found the highest density of insects between 150 to 250 meters. Scientists have estimated that the impact of wind farms in Germany is a “loss of 1.2 trillin insects of different species per year.” That is significant, particularly when Germany is one-third of southern Europe’s entire insect migratory pathway.

Deceiving the Public

The fact that the wind industry is killing hundreds of bald and golden eagles hasn’t stopped them from labeling it a myth, either.

LandGate recently published its Six Popular Myths about Wind Turbines. Myth #1 is that wind turbines are a danger to wildlife. I guess they don’t care about the bald or golden eagles. As this was published in March 2022, just a month prior to the DOJ sentencing of NextEra Energy’s ESI, it’s possible that LandGate didn’t believe the data would be made public so they could continue to hide the truth from the public eye.

LandGate is but one example. The National Renewable Energy Laboratory (NREL) has also come to the wind industry’s aid. NREL Myth #9 is that Wind Turbines Kill Birds and Thus Have Serious Environmental Impacts. They try to deflect that wind farms are no worse than buildings as if blackbirds are equal to bald eagles.

The wind industry claims house cats kill more birds than wind turbines, but whereas cats mainly kill small, common birds, like sparrows, robins, and jays, wind turbines kill big, threatened, and slow-to-reproduce species like hawks, eagles, owls, and condors [Apocalypse Never, Micahel Shellenberger]. These kinds of erroneous defenses by the wind industry fall flat.

Change is Required to Protect the Eagles

In 2014, the American Bird Conservancy (ABC) sued the Department of the Interior, charging them with multiple violations of federal law in conjunction with the 2013 ruling allowing wind energy companies to obtain 30-year permits to kill eagles without prosecution by the federal government. “If government agencies are allowed to ignore their own rules, we have a dangerous precedent that should be of great concern to anyone who cares about wildlife in this country”, ABC’s President said.

As ABC’s Vice President Steve Holmer said, “Bald Eagles are rebounding, but they’re still well below their historic numbers. We have to stay vigilant. That means keeping a close watch on how they’re being managed.”

It is not possible to closely watch how they’re being managed today, though, because the U.S. Fish & Wildlife Service continues to allow the wind industry to hide vital data from the public. That’s assuming they are collecting data at all.

Wind companies should be required to fund independent researcher like they do in Hawaii, to monitor bird strikes closely and report that data publicly. That’s the only way the American Bird Conservancy’s vision of keeping a close watch is possible.

NextEra’s Response is Tone-Deaf

NextEra’s response to this story is shockingly tone-deaf.

Instead of apologizing for killing at least 150 bald and golden eagles, NextEra’s President & CEO decides to blatantly lie to the public. On multiple occasions, the US Fish & Wildlife Service notified NextEra that its siting was poor and recommended that the wind farms not be built where they had proposed them. The wind farm was literally not developed and sited in a way that sought to avoid avian wildlife collisions.

NextEra didn’t just ignore the warnings of the USFWS, they demonstrated a blatant disregard for wildlife laws.

One reason for this is that NextEra is subsidized (incentivized) to blatantly disregard wildlife. NextEra is displaying pure greed.

The truth is that NextEra showed blatant disregard for wildlife because it needed to meet the subsidy deadlines for particular tax credit rates for its wind energy before they expired. If they expired, it’s likely the projects would become uneconomic.

NextEra’s greed is further highlighted by the fact the DOJ found that, by ignoring the rules and caring for wildlife, NextEra “gained a competitive advantage relative to those wind companies” that chose to follow the rules and care for wildlife.

That NextEra President & CEO complained! that wind farms were being unfairly targeted is beyond reproach. It also begs the question, should the United States revisit the way we are incentivizing these wind (and solar) companies towards “blatant disregard” for American conservation laws?