Power Companies Advance Voluntary Avian Protection Without Threat of Liability for Incidental Take

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With shifts in political winds come shifts in agency legal interpretations. In January 2017, the solicitor of the U.S. Department of the Interior (DOI) issued a formal legal opinion interpreting the Migratory Bird Treaty Act (MBTA) to prohibit the incidental take (accidental injury or death) of migratory birds. This "midnight" legal opinion was widely viewed as an effort to "lock in" the Obama administration's interpretation that the act prohibits incidental take.

Less than one year later, the DOI issued Opinion M-37050, which interpreted the act not to prohibit the incidental take of migratory birds. Since then, a flurry of administrative, legislative, and judicial activity has ensued. There is pending litigation challenging the Trump administration's interpretation and draft legislation that would overrule it. At the same time, the DOI is advancing a proposed rule to put the interpretation into a regulation. Regardless of these shifts and uncertainties, one thing has remained constant-power companies have continued to commit resources to protect migratory and other birds and their habitats.

The State of the Law

The MBTA provides that "it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, [or] attempt to take, capture or kill . . ." protected migratory birds. Courts that have addressed whether this provision prohibits the incidental take of migratory birds from otherwise lawful conduct have landed in different places. Some have concluded that criminal and civil liability under the MBTA attaches to incidental take while other courts have concluded the opposite. This split among the circuit courts has created a fractured MBTA legal regime.

Only days before President Trump took office, then-Interior Solicitor Hilary Tompkins issued Opinion M-37041, which concluded that "the MBTA's broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing." However, after President Trump took office the DOI temporarily suspended Opinion M-37041. Subsequently, in December 2017, Acting Interior Solicitor Daniel Jorjani issued Opinion M-37050, which permanently withdrew and replaced Opinion M-37041, and concluded that "the statute's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs." In other words, under Opinion M-37050, the MBTA's prohibitions do not apply to incidental take arising from otherwise lawful conduct.

Since the issuance of Opinion M-37050, several environmental organizations and a coalition of states have challenged it by filing lawsuits in the U.S. District Court for the Southern District of New York. Among other things, these lawsuits allege that Opinion M-37050 is inconsistent with the plain language of the MBTA, constitutes a legislative rule that was not subjected to notice-and-comment rulemaking procedures required by the Administrative Procedure Act, and violates the National Environmental Policy Act. On July 31, 2019, the district court partially granted the DOI's motion to dismiss in the now-consolidated action, holding that Opinion M-37050 is an interpretive rule and dismissing the claim alleging a notice-and-comment violation. The remaining claims will now proceed to the merits.

On the merits, plaintiffs undoubtedly will rely on the 1978 decision of the U.S. Court of Appeals for the Second Circuit in United States v. FMC Corporation. In that case, the court concluded that the MBTA prohibited the incidental take of migratory birds caused by a company's handling of highly toxic pesticides. However, that court, acknowledging ambiguity in the text of the statute, declined to conclude that the MBTA's plain language required this outcome. Instead, the court focused on principles of strict liability for engaging in "extrahazardous activities," while making clear that interpreting the MBTA generally to prohibit incidental take "would offend reason and common sense." Any decision on the merits would likely implicate the Skidmore deference doctrine applicable to an agency's statutory interpretation reflected in legal opinions and other guidance documents. As a result, the court likely would afford the DOI's interpretation some weight.

Power Company Avian Protection Efforts

Regardless of the outcome of the pending litigation and the proposed rule to codify Opinion M-37050, power companies have shown they will continue their voluntary efforts to reduce incidental take of birds. They have been developing and implementing avian protection policies to protect birds from power lines and wind turbines; conducting and funding innovative avian protection research; and partnering with nonprofit and governmental organizations to, among other things, support conservation efforts. These under-recognized (and often unrecognized) efforts deserve greater attention from policymakers, regulators, and the public at large.

Since the formation of the Avian Power Line Interaction Committee (APLIC) in 1989, electric utilities have collaborated with the U.S. Fish and Wildlife Service (FWS) to reduce avian electrocution and collision mortality. APLIC, whose members own nearly 80% of U.S. power lines, voluntarily developed Avian Protection Plan (APP) Guidelines to help companies reduce avian interactions with electric utility facilities. Many power companies have relied on these guidelines to develop their own APPs, which typically include construction design standards to reduce avian interactions, nest management procedures, monitoring and reporting systems to track avian mortalities, mortality reduction measures, APP employee training, and avian enhancement programs.

Some companies, such as Salt River Project and Duke Energy, have created bird hotlines for the public, agencies, and employees to report bird interactions with power lines. Related to its monitoring efforts in 2019, Duke Energy has completed more than 250 hours of project-specific avian surveys to ensure that its projects are not impacting MBTA-listed birds. Other companies, like Entergy, monitor bird incidents and report them to FWS via independently established online reporting databases.

Complementing these monitoring and reporting efforts, many power companies respond to avian incidents by installing additional avian safeguards at the incident location. For example, after non-eagle raptor incidents, Arizona Public Service Co. will bird-guard (that is, install devices to insulate pole equipment) 11 consecutive distribution poles from the point of interaction; it will bird-guard five consecutive distribution poles following songbird incidents.

For particularly vulnerable bird species, some power companies have begun deploying tracking systems in an effort to further reduce incidental take. Salt River Project, for instance, has worked with the Arizona Game and Fish Department since 2017 to place cellular GPS units on urban nesting bald eagles. And in June 2019, Arizona Public Service Co. launched its initiative to place transmitters on golden eagles. These companies plan to use the data collected to identify areas at high-risk for bird interactions so they can target their installation of additional avian safeguards.

Power companies also are investing significant resources to implement their APPs. Duke Energy Florida, for example, initiated its own retrofitting program in 2016 as part of a plan to invest more than $500 million in system upgrades to improve service and protect wildlife. And from 2007 to 2018, NextEra Energy Inc.'s Florida Power & Light Co. invested more than $125 million to construct and retrofit more than 140,000 poles to meet avian-safe standards.

As with the development of APLIC's model APP Guidelines, many power companies with wind-energy projects helped develop and now implement FWS's 2012 Land-Based Wind Energy Guidelines. These guidelines advise companies to, among other things, conduct at least one year of post-construction mortality monitoring. NextEra Energy Resources LLC projects have been following this protocol for all U.S. wind sites constructed since 2012. The company has also implemented a whooping crane protection plan for all of its wind farms within the bird's migration corridor-it immediately shuts down turbines if a whooping crane is spotted on the ground or flying near its facilities.

Power companies with wind-energy projects also continue to develop innovative technologies to mitigate the risk of incidental take. Notably, Duke Energy has installed a camera-based monitoring system called IdentiFlight at its Top of the World Windpower Project in Wyoming. This system's artificial intelligence detects eagles and shuts down specific wind turbines if it detects a collision risk. In a study of this system's effectiveness, IdentiFlight detected 96% of birds detected by human observers and a total of 562% more birds than the same observers. NextEra Energy Resources LLC's Golden Hills wind energy facility in California is set to conduct its own trials of IdentiFlight in the fall of 2019.

Beyond these on-the-ground, project-related efforts, many power companies invest resources in the Electric Power Research Institute (EPRI), an independent, nonprofit organization that conducts public interest energy and environmental research. EPRI is funded primarily by its members, which represent approximately 90% of the electric utility revenue generated in the U.S. By funding EPRI, the power sector contributes to developing groundbreaking avian protection measures. For example, EPRI-funded research led to the development and use of an ultraviolet light system that significantly reduced nighttime transmission line collisions by sandhill cranes at the Rowe Sanctuary in Buffalo County, Nebraska.

In addition to funding EPRI, power companies routinely partner with nonprofit and governmental organizations to protect birds. Sometimes these partnerships take the form of research or monitoring programs. Consider how PNM Resources engaged Hawks Aloft Inc., a local avian conservation organization, to identify avian concentrations for targeted retrofits of more than 400 transmission line structures with strategically placed perch diverters. In other instances, companies use their resources to support avian conservation organizations. In another example, LG&E and KU Energy LLC work closely with the Kentucky Division of Fish and Wildlife Resources to support their peregrine falcon wildlife diversity program. These beneficial partnerships continue.

In sum, although facing no present risk of liability under the MBTA, power companies are continuing to implement their APPs, investing hundreds of millions of dollars to build avian-friendly power lines, helping to develop and adopting innovative avian-protections measures, funding groundbreaking conservation research, and partnering with local environmental and governmental organizations. These facts undermine the assertion that, without the threat of criminal and civil liability under the MBTA for incidental take, power companies will not minimize and mitigate the incidental take of birds. To be sure, power companies seek to accomplish their business mission as efficiently as possible. But what many policymakers, regulators, and others have been missing is that conservation efforts, including avian protection, have become business as usual for power companies.

-Chris Carr is a partner in the San Francisco, California, office of Baker Botts; Jared R. Wigginton is an environmental and natural resources attorney in Baker Botts' Washington, D.C., office; and Scott Novak is a summer associate with Baker Botts.

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