Robyn Rose


The Migratory Bird Treaty Act (MBTA), almost a century old, incites disagreement between conservationists, wind energy developers, and the courts. The MBTA protects over 800 bird species but unlike other conservation laws, the MBTA and its regulations do not provide for “incidental takes” (an unintentionally caused bird death or injury). In the absence of an incidental take permitting program, the United States Fish and Wildlife Service (FWS) developed the voluntary Land-Based Wind Energy Guidelines to reduce wind energy impacts on migratory birds. A circuit court split exists on whether a wind energy developer violates the MBTA when a bird is killed or injured during an otherwise lawful activity. The current situation is flawed. This article presents a solution that benefits both birds and wind energy development. FWS should use its “special purpose permit” to require commercial actors to engage in thoughtful pre-construction siting and mitigation in exchange for incidental takes.



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