The Trump administration has quietly opened the door to strictly enforcing a migratory bird protection law in a way that could cast a legal cloud over wind farms across the country.
As I’ve chronicled for Heatmap, the Interior Department over the past month expanded its ongoing investigation of the wind industry’s wildlife impacts to go after turbines for killing imperiled bald and golden eagles, sending voluminous records requests to developers. We’ve discussed here how avian conservation activists and even some former government wildlife staff are reporting spikes in golden eagle mortality in areas with operating wind projects. Whether these eagle deaths were allowable under the law – the Bald and Golden Eagle Protection Act – is going to wind up being a question for regulators and courts if Interior progresses further against specific facilities. Irrespective of what one thinks about the merits of wind energy, it’s extremely likely that a federal government already hostile to wind power will use the law to apply even more pressure on developers.
What’s received less attention than the eagles is that Trump’s team signaled it could go even further by using the Migratory Bird Treaty Act, a separate statute intended to support bird species flying south through the U.S. from Canada during typical seasonal migration periods. At the bottom of an Interior press release published in late July, the department admitted it was beginning a “careful review of avian mortality rates associated with the development of wind energy projects located in migratory flight paths,” and would determine whether migratory birds dying because of wind farms qualified as “‘incidental’ takings” – harm or death – under the Migratory Bird Treaty Act.
While not stated explicitly, what this means is that the department appears to be considering whether to redefine these deaths as intentional under the Migratory Bird Treaty Act, according to Ben Cowan, a lawyer with the law firm Troutman Pepper Locke.
I reached out to Cowan after the eagle investigation began because his law firm posted a bulletin warning that developers “holding active eagle permits” might want to prepare for “subpoenas that may be forthcoming.” During our chat earlier this month, he told me that the eagle probe is likely going to strain financing for projects even on private lands that wouldn’t require any other forms of federal sign-off: “Folks don’t want to operate if they feel there’s a significant risk they might take an eagle without authorization.”
Cowan then voiced increasing concern about the migratory bird effort, however, because the law on this matter could be a quite powerful – if legally questionable – weapon against wind development.
Unlike the Endangered Species Act or the eagle protection law, there is currently no program on the books for a wind project developer to even obtain a permit for incidental impacts to a migratory bird. Part of the reason for the absence of such a program is the usual federal bureaucratic struggle that comes with implementing a complex statute, with the added effect of the ping-pong of federal control; the Biden administration started a process for permitting “incidental” impacts, but it was scrapped in April by the Trump team. Most protection of migratory birds under the law today comes from voluntary measures conducted by private companies and nonprofits in consultation with the federal government.
Hypothetically, hurting a migratory bird should be legally permissible to the federal government. That’s because the administration loosened implementation of the law earlier this year with an Interior Department legal opinion that stated the agency would only go after harm that was “intentional” – a term of art under the statute.
This is precisely why Cowan is fretting about migratory birds, however. Asked why the wind industry hasn’t publicly voiced more anxiety about this potential move, he said industry insiders genuinely hope this is “bluster” because such a selective use of this law “would be so beyond the pale.”
“It’s basically saying the purpose of a wind farm is to kill migratory birds, which is very clearly not the case – it’s to generate renewable electricity,” Cowan told me, adding that any effort by the Interior Department would inevitably result in lawsuits. “I mean, look at what this interpretation would mean: To classify it as intentional take would say the purpose of operating a wind farm would be to kill a bird. It’s obviously not. But this seems to be a way this administration is contemplating using the MBTA to block the operation of wind farms.”
It’s worth acknowledging just how bonkers this notion is on first blush. Is the federal government actually going to decide that any operating wind farm could be illegal? That would put entire states’ power supplies – including GOP-heavy states like Iowa – in total jeopardy. Not to mention it would be harmful overall to take operating capacity offline in any fashion at a moment when energy demand is spiking because of data centers and artificial intelligence. Even I, someone who has broken quite a few eye-popping stories about Trump’s war on renewables, struggle to process the idea of the government truly going there on the MBTA.
And yet, a door to this activity is now open, like a cleaver hanging over the industry’s head.
I asked the Interior Department to clarify its timeline for the MBTA review. It declined to comment on the matter. I would note that in mid-August, the Trump administration began maintenance on a federal dashboard for tracking regulations such as these and hasn’t updated it since. So we’ll have to wait for nothing less than their word to know what direction this is going in.
