The US Fish and Wildlife Service proposed boosting the annual incidental take limit for bald eagles in early May from 1,103 to 4,200 nationwide, an increase that it said reflects the continued growth in eagle populations. The move was most certainly intended to support the wind industry.  

At the same time, the Fish and Wildlife Service released for comment a proposed programmatic environmental impact statement as part of the improvements to its eagle conservation and management program. It also proposed changes to its regulations governing permits for incidental take of bald and golden eagles. 

Among other things, the proposed regulations direct how eagle populations are to be monitored and managed and address how data on permitted eagle take will be collected and used. They also explain how the incidental take permitting system is supposed to fit within the overall framework of eagle management.

Perhaps most important to wind developers, the proposed regulations would extend the maximum permit for incidental take of eagles to 30 years, subject to a recurring five-year review process throughout that period. However, only applicants who commit to measures to ensure the preservation of eagles will be considered for permits with terms longer than five years.

The Bald and Golden Eagle Protection Act establishes a “preservation standard” for take permits. The Fish and Wildlife Service must determine that any take of eagles it authorizes is “compatible with the preservation of bald eagles or golden eagles.” Each take permit must be “consistent with the goal of maintaining stable or increasing breeding populations.”  

“The permitting system provides a mechanism for private companies to do the right thing,” said Fish and Wildlife Director Dan Ashe. “Many companies are making efforts to avoid killing migratory birds during design, construction and operation of industrial facilities, and we look forward to working with additional permit applicants to ensure their operations are compatible with efforts to conserve eagles.”

In support of the proposed changes, the agency released a report assessing the current status and continued resiliency of bald and golden eagle populations, called “Bald and Golden Eagles: Status, trends, and estimation of sustainable take rates in the United States.” The report is a compilation of the most current research.

The bald eagle was once in danger of extinction in the lower 48 states, with fewer than 500 nesting pairs remaining. First listed as endangered in 1967, the Bald Eagle was removed from the list of endangered and threatened species in 2007 because populations had recovered. The new eagle status report indicates the bald eagle population has continued to rise throughout the United States and now numbers more than 143,000. 

At the same time, data suggest the golden eagle population — now just over 26,000 — has declined, heightening the importance of taking conservation measures. The take limit on golden eagles would remain at zero, unless those deaths or injuries are mitigated. The Fish and Wildlife Service takes a “no-net-loss” approach to golden eagles and compensatory mitigation is required to avoid any reduction in the current population.

For bald eagles, compensatory mitigation depends on the quantity of local take and is calculated using the concept of “local area populations.” The Fish and Wildlife Service looks at the existing population and take within 86 miles of the project. If projected take within the relevant area would exceed 5% of the bald eagle population on an annual basis, then compensatory mitigation will probably be required. In other circumstances, compensatory mitigation is discretionary with the Fish and Wildlife Service. 

Both bald and golden eagles are protected under the Eagle Protection Act, the Migratory Bird Treaty Act and the Lacey Act. The Eagle Protection Act imposes criminal and civil penalties for any take of a bald or golden eagle. “Take” is broadly defined to mean “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.” The US government has said it intends to pursue companies that violate these laws, raising concerns for developers and project owners who might unintentionally harm the birds. 

Few applicants have been granted take permits since the Fish and Wildlife Service first authorized incidental take permits for eagles in 2009. This has made it more difficult to develop wind farms in certain areas.  A goal of the new proposed regulations is to increase the number of permits issued and rely on compensatory mitigation of unintentional harm.

The public may submit comments on the proposed regulations and the programmatic environmental impact statement until July 5, 2016. Both are available at http://www.fws.gov/birds/management/managed-species/eagle-management.php

Methane Emissions 

The US Environmental Protection Agency issued final regulations in May that are supposed to reduce methane emissions from new and modified oil and gas industry infrastructure, including wells, processing plants and pipelines. The agency is still working on regulations to reduce emissions from existing oil and gas operations. The Obama administration wants to reduce methane emissions from the oil and gas sector by 45% from 2012 levels by 2025.

Natural gas usage has increased steadily in the US as fracking has increased supply and brought down prices. Production, transportation, and use of natural gas causes significant quantities of methane to be released into the atmosphere. Methane emissions are of particular concern for climate change because, pound for pound, methane traps significantly more heat in the atmosphere than carbon dioxide. EPA says that the amount of methane leaking from oil and gas wells is much higher than previously reported. 

The regulations will require oil and gas companies to detect and repair leaks, capture gas from hydraulically fractured wells, limit emissions from new and modified pneumatic pumps, and limit emissions from several types of equipment used at gas transmission compressor stations. The agency says the regulations will reduce methane emissions by 520,000 short tons and also reduce 210,000 tons of volatile organic compounds or “VOCs” that contribute to smog. EPA estimates that compliance with the regulations will cost the oil and gas industry about $530 million in 2025 and result in health care and other benefits of approximately $690 million.

In addition to the requirements for new and modified equipment, the regulations require oil and gas companies to provide information on existing sources of methane emissions, the presently available emissions reduction technologies, and the costs of reducing existing emissions. Information gathering by EPA is the first step in regulating existing sources. Existing sources emit significantly more methane and VOCs than new and modified sources. EPA regulation of existing sources is expected to be much broader and costly than regulating new and modified sources.

The oil and gas industry is unhappy with the regulations. “Imposing a one-size-fits-all scheme on the industry could actually stifle innovation and discourage investments in new technologies that could serve to further reduce emissions,” Kyle Isakower, vice president for regulatory policy at the American Petroleum Institute, said.

Environmentalists see the regulations as a positive first step, but are “urging EPA to move expeditiously on its commitment to address existing sources,” according to Michael Brune, executive director of the Sierra Club. 

Clean Power Plan Update

The full US court of appeals in Washington will hear oral arguments about the Clean Power Plan on September 27, bypassing a hearing before a three-judge panel that had been set for June 2. This should speed when the plan lands before the Supreme Court. 

Earlier this year, the Supreme Court took the unprecedented step of deferring implementation of the plan while it is being litigated.

The Clean Power Plan requires a 32% reduction in carbon dioxide emissions from most existing coal- and gas-fired power plants by 2030. Each state has been assigned individual carbon reductions and is required to submit an implementation plan demonstrating how it will achieve the reductions. The federal government will impose a federal plan on states that fail to submit their own plans or that submit plans that fall short of what the Clean Power Plan requires.

The immediate effect of the decision by the full US appeals court to hear the case is to delay oral argument by three months, but ultimately it will expedite judicial review of the plan. As any decision by the court will almost certainly be appealed to the Supreme Court, the decision shortens the path to review by the high court.  

The appeals court did not explain its decision to bypass a hearing before a three-judge panel. One possible explanation is that several of the judges concluded that some of the issues involved in the case are of such significance that they warrant the full court’s attention in the first instance. EPA has attempted to frame the Clean Power Plan as a routine exercise of its Clean Air Act authority. Opponents characterize the plan as an unconstitutional restructuring of the US energy sector.

Notwithstanding the stay imposed by the Supreme Court, 14 states have asked the EPA for assistance as they prepare to comply with the Clean Power Plan. EPA has said it will work with states that want to take voluntary measures to comply with the Clean Power Plan should it be upheld.

Environmental regulators in California, Colorado, Connecticut, Delaware, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Oregon, Rhode Island, Vermont, Virginia and Washington asked the EPA in late April to provide model rules to guide their compliance with the Clean Power Plan. The states have also asked for guidance on how to track emissions allowances, credits for trading programs, and how to measure and verify energy efficiency gains, and for additional guidance on the Clean Energy Incentive Program, a voluntary program that provides incentives for early investments in renewables and energy efficiency programs in low-income communities. 

Opponents of the Clean Power Plan argue that the Supreme Court stay means that all work on the plan should stop until litigation is complete. Texas Attorney General Ken Paxton and Ohio Attorney General Patrick Morrisey emphasized this point in a May 18 letter to EPA asserting that “[b]ecause the [Clean Energy Incentive Program] and the carbon trading rules have no legal significance without a legally effective Power Plan, efforts to push these programs forward at this time can only be understood as an attempt to make the Power Plan a fait accompli and to undermine the Supreme Court’s order.”