Wind Turbines and Migratory Birds: Avoiding a Collision Between the Energy Industry and the Migratory Bird Treaty Act

January 30, 2014

Wind energy is gaining prominence as a source of pollution-free electrical energy. An old environmental statute, however, may act as a roadblock for this clean, renewable energy. The Migratory Bird Treaty Act prohibits the killing or taking of nearly all birds found in the United States. While this legislation has been a boon for the country’s bird population, it may criminalize the thousands of birds unintentionally killed by collisions with wind turbines. Congress needs to address this issue by amending the Act to exempt these unintentional bird collisions. In the interim, courts should adopt a new framework which would discourage bird takes while still allowing the wind energy industry to thrive. Furthermore, the U.S. Fish & Wildlife Service, the agency tasked with enforcing the Bird Act, should adopt a clear standard under the Chevron deference. In addition to the adoption of these policies, the wind energy industry should implement vertical-axis turbines rather than traditional turbines, which will greatly reduce the number of migratory bird deaths.