Under grilling, FWS director defends wildlife enforcement at wind farms

SNL
By Michael Copley
March 26, 2014

A House Committee hearing that was called March 26 to investigate the Obama administration's relationship with the wind power industry and the government's enforcement of wildlife protection laws served up more partisan squabbling than the kind of procedural answers for which Republican members said they were searching.

Members of the House Natural Resources Committee spent roughly two hours questioning U.S. Fish and Wildlife Service Director Daniel Ashe on his agency's slow response to a May 2013 congressional inquiry into the service's handling of the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The committee subpoenaed Ashe on March 11 demanding more than 65 unredacted documents related to communication between federal regulators and wind farm developers and referrals to the Department of Justice for suspected violations of the laws.

Republican lawmakers have accused the FWS and DOJ of ignoring wildlife violations by wind farm developers while prosecuting fossil fuel companies for similar infractions. Conservation groups have raised similar concerns about environmental enforcement in the wind industry.

"There are legitimate concerns that the Obama Administration is implementing these laws in an arbitrary fashion," Committee Chairman Doc Hastings, a Washington state Republican, said in his opening remarks. "We're also interested in learning more about what role 'cooperation' between the administration and wind developers plays in making enforcement decisions."

Like the oil and gas industry before it, Ashe said, the wind industry is working with regulators on best management practices that can be used to judge whether developers are making earnest efforts to avoid killing or injuring protected birds and eagles.

"There is no preferential application of the statutes to the wind industry compared to traditional energy development," Ashe said in written testimony. "However, industrial-scale wind facilities are relatively new on the landscape. As we learn more about how to avoid and minimize the effects of these facilities on migratory birds and other wildlife, the service will continue working with the wind energy industry to develop guidelines and best management practices on siting operations."

Regulators released updated guidance in April 2013 that the FWS called a "roadmap" that wind developers can use when applying for "take" permits — authorization to kill or disturb a limited number of birds and eagles in the course of otherwise lawful activity. Roughly six months later, in December 2013, the FWS issued a final rule extending the maximum duration of take permits from five years to 30 years. Though the permit is not exclusive to the wind industry, some viewed it as special treatment for the renewable energy sector. To date, no take permits have been issued to wind developers, though about "a dozen" are working their way through the permitting process, Ashe said after the hearing.

Rep. Peter DeFazio, D-Ore., the committee's ranking member, blasted Hastings and other Republicans for "wasting a lot of valuable time and taxpayer resources" on "yet another conspiracy theory that doesn't exist."

"There are things to investigate, there are things that need to be legislated, but that certainly isn't what's going on here today," DeFazio said.

"We want to pretend we're the Issa committee, I guess, on investigations and oversight, and act like Darrell Issa, which is really not something to be aspired to or replicated as far as I'm concerned," he said at another point.

Rep. Darrell Issa, R-Calif., chairman of the Committee on Oversight and Government Reform, is leading an investigation into allegations that the Internal Revenue Service targeted conservative groups.

Ashe told lawmakers that the wind industry, which he said has about 48,000 turbines scattered across the continental U.S., is responsible for about 500,000 bird fatalities each year. Meanwhile, the oil and gas industry, which has roughly 876,000 wells drilled in the U.S., kills an estimated 1 million to 2 million birds annually, he said.

Seizing on those numbers and the fact that the FWS says it currently is investigating 17 cases of suspected wildlife violations in the wind industry and 21 cases involving oil and gas companies, Rep. Jared Huffman, D-Calif., asked whether it is reasonable to conclude that government actually is taking a harder line with wind developers than fossil-fuel companies.

"That's a reasonable conclusion, sir," Ashe responded.

Lawmakers focused during the hearing on the prosecution of a Duke Energy Corp. subsidiary for killing 14 golden eagles and at least 149 other protected birds at two wind farms in Wyoming. The case "establishes a precedent for the prosecution of other violations," Ashe said.

Lawyers who work in the wind industry said in January that developers are under increasing pressure to enter into formal conservation programs now that the Duke case is finished and the new 30-year take permit is on the books.

To date, the FWS has referred seven cases of suspected violations by wind farms to the DOJ for prosecution, Ashe said.

The March 26 proceeding, which Huffman called a "show hearing," did little to assuage Republican critics of the FWS. "The chairman will be satisfied once the department decides to be open and transparent and comply with the committee's repeated requests for documents and information," Natural Resources Committee spokesman Michael Tadeo said in an email after the hearing.

So far, the FWS has provided roughly 5,000 pages of documents to the committee, though Ashe acknowledged that he still has not met all of the demands in the subpoena. "I think that it's physically impossible for me to comply with the subpoena," he told lawmakers. "I feel like I have no way to meet the committee's expectations, and what I would suggest is we sit down with the committee and find a reasonable pathway forward."

Given the high level of scrutiny from Republicans, DeFazio asked if Ashe would push for stricter enforcement of wind developers.

"Our enforcement agents go, as I said, where the facts take them and the evidence takes them, and if we see cause to bring prosecution against wind or solar operators we will," Ashe said. "Any strict liability law has to involve the exercise of enforcement discretion," he added at another point.