LPDD Model Law: Proposed Revisions to the MBTA and BGEPA for Permitting Renewable Energy

This model law proposes language to give the Fish and Wildlife Service explicit authority to grant incidental take permits for renewables and transmission lines under the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. 

The Bald and Golden Eagle Protection Act (“BGEPA”) prohibits anyone, without a permit issued by the Secretary of the Interior, from “taking” bald or golden eagles, including their parts (including feathers), nests, or eggs. The Act defines “take” as “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.” The Migratory Bird Treaty Act (“MBTA”) is intended to ensure the sustainability of populations of all protected migratory bird species in the four international treaties that the U.S. entered into with Canada in 1916, Mexico in 1936, Japan in 1972, and Russia in 1976. The MBTA and BGEPA currently have no provisions allowing the incidental take of species protected under the MBTA or BGEPA. There is as yet no viable permitting system, though the statute gives the DOI very broad authority “to adopt suitable regulations permitting and governing” take of migratory birds (16 U.S. Code § 704). Therefore, the Acts that regulate impacts to avian wildlife in the U.S. are colliding with renewable energy policy and promotion in the U.S. The MBTA and BGEPA, as currently enforced, have presented challenges for renewable energy projects, in some cases creating roadblocks for renewable energy project developers and/or operators if they are unable to perform their activities in compliance with the MBTA and BGEPA provisions.

Considering that the activities performed by renewables energy and transmission lines entities are indispensable and may cause the disturbance of migratory birds, bald or golden eagles, or their habitat, explicitly granting authority to the Secretary of the Interior to issue Incidental Take Permits to renewable energy and transmission projects under the MBTA and the BGEPA will allow the U.S. to accelerate the development of such projects while minimizing or offsetting the potential impacts of such projects on migratory birds, bald and golden eagles, and their habitat.