At last, a federal court has taken a move to limit the slaughter of our national symbol, otherwise protected by law, in the headlong rush to produce expensive, unreliable wind power, based on the unproven theory that carbon dioxide emissions lead to global warming, or climate change, or something really, really bad, sometime in the future, even if not right now.

Photo credit: birdlife.com, via the Examiner

 A US District Court in San Jose, California has ruled invalid a Department of the Interior regulation allowing wind energy and some other companies to kill bald and golden eagles for the next 30 years, in the name of “clean energy.” The American Bird Conservancy, a plaintiff in the suit brought against the so-called 30 year “eagle take” rule hailed the decision:

“We are pleased that the courts agreed with us that improper shortcuts were taken in the development of this rule,” said Dr. Michael Hutchins, Director of ABC's Bird Smart Wind Energy Program. “The court found that important laws meant to protect our nation's wildlife were not properly followed by the U.S. Fish and Wildlife Service, putting Bald and Golden Eagles at greater risk.”

The court wrote: “… substantial questions are raised as to whether the Final 30-Year Rule may have a significant adverse effect on bald and golden eagle populations.”

In particular, the courts cited a lack of compliance with the National Environmental Protection Act (NEPA). "We're ready to work with the U.S. Fish and Wildlife Service to conduct the required NEPA analysis and formulate a better system to protect eagles from poorly-sited wind energy projects,” said Hutchins. “We must come up with a better system to assess the potential risks to birds and bats prior to a project's siting and construction and to track and mitigate project impacts post-construction.”

The ruling leaves in place the 1009 “eagle take” rule allowing five year licenses. The court held that the increase in the duration of the license to kill required a separate Environmental Impact Statement.

 “… FWS has failed to show an adequate basis in the record for deciding not to prepare an EIS (Environmental Impact Statement) — much less an EA (Environmental Assessment) — prior to increasing the maximum duration for programmatic eagle take permits by sixfold.” (snip)

 “ … While promoting renewable energy projects may well be a worthy goal,” the ruling continued, “it is no substitute for the [agency's] obligations to comply with NEPA and to conduct a studied review and response to concerns about the environmental implications of major agency action. … Accordingly, the Court holds that FWS violated NEPA's procedural requirements and that the Final 30-Year Rule must therefore be set aside and remanded to FWS for further consideration.”

The court cited concerns that had been raised by FWS staff during development of the 30-year eagle rule, stating: “The record [in the case] bolsters the Court's conclusion, as FWS's failure to adequately ‘address concerns raised by its own experts' is cause for the Court to find a NEPA violation.”

Nonetheless, the victory is significant because it is doubtful projects that might be limited to five years could obtain financing. At a minimum, here will some delay in moving forward with the bird Cuisinearts that are chopping up our avian friends.

Hat tip: Peter von Buol