Bird protection legislation that could affect offshore wind projects in the US has been criticised for the uncertainty it could create
Responding to a House Natural Resources Committee markup of legislation it claims could adversely affect offshore wind projects in the US, the National Ocean Industries Association issued the following statement.
“The Natural Resources Committee markup of 15 January 2020 included a mixed bag of legislation impacting energy production, particularly offshore wind development.
“HR 5552, the Migratory Bird Protection Act of 2020, is a step in the wrong direction. We are not that far removed from arbitrary and punitive applications of the Migratory Bird Treaty Act (MBTA).
“HR 5552 would re-establish regulatory uncertainty and the threat of unfounded litigation. The regulatory rollback the bill envisions would open the door to massive penalties and serve to deter project financing for a host of reasonable and responsible activities, including the development of the US offshore wind industry.”
The proposed legislation NOIA is referring to saw the committee advance the Migratory Bird Protection Act sponsored by Congressman Alan Lowenthal (D-Calif). The legislation would amend the MBTA to affirm the law applies to accidental bird deaths from commercial activity, such as oil and gas and offshore wind development.
Supporters of the legislation say its intent is to protect migratory birds from industrial activity and that it provides ‘regulatory certainty’ to ‘responsible developers’ in managing ‘incidental take,’ so long as they follow best management practice to avoid bird deaths. In contrast to NOIA, the National Resources Defense Council said, “This important and reasonable approach gives industry clear and consistent expectations for protecting birds without jeopardising our international commitments and conservation legacy.”
In response, NOIA said, “The offshore energy industry prides itself on being a responsible actor and a good environmental steward. NOIA members – and the energy industry at large – employ robust mitigation measures to protect wildlife, including extensive planning, training facility inspections, engineering controls, installation of fencing, and anti-perching and anti-collision devices, and will continue to innovate and develop more and more sophisticated and responsive measures.”
It went on to describe the MBTA as “an irreplaceable part of American conservation,” but believes the legislation “would abandon the sensible conservation approach that the courts, administration and Congress have embraced.”
In a letter to legislators, NOIA said the bill “re-criminalises the mere existence of entire categories of environmentally beneficial projects” at a time when the renewable energy sector in the US is expanding.
“We applaud and support efforts to protect migratory birds,” said NOIA. “However, we are aware of the fact that the interpretation of the MBTA has expanded significantly from its inception as an effort to stop over-poaching.”
NOIA said approximately 25 years elapsed before the MBTA’s passage before courts expanded its focus to incidental takes and federal action against companies inadvertently responsible for the death of birds.
“In the intervening years, the energy sector has faced millions of dollars in fines and settlement costs for the accidental death of birds covered by the MBTA, arguably held to a higher standard than companies in other industries. We should not turn back the clock to an era of arbitrary and punitive applications of the MBTA,” NOIA said.
“A renewed layer of bureaucracy, fees, and the threat of criminal prosecution, not to mention the likelihood of rising compensatory mitigation costs, are not inconsequential for an offshore wind industry that already faces significant regulatory costs and hurdles in bringing new forms of energy to market.
“That is why, as this bill moves through the Natural Resources Committee, it is our hope that you will consider narrowing the focus of incidental take, or first requiring a study of the largest drivers of incidental take and whether an across-the-board regulatory regime is warranted.”