LPDD Model Law: Protected Avian Species Permitting

Electric infrastructure that is critical to achieving a net zero economy may impact federally protected avian species.  To encourage construction of this infrastructure, project developers prefer certainty regarding both their potential liability for impacts to protected avian species and the actions that can be taken to avoid that liability.  As a result of textual differences among the three key federal avian protection statutes—the Endangered Species Act of 1973 (ESA), BGEPA, and MBTA—that certainty does not currently exist.

This model document proposes amendments to the Migratory Bird Treaty Act of 1918 (MBTA) and the Bald and Golden Eagle Protection Act of 1940 (BGEPA) that would give the U.S. Fish and Wildlife Service (USFWS) explicit authority to grant permits for incidental take caused by renewable power generation facilities and electric transmission and distribution infrastructure. Two key amendments are proposed.