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Edison Electric Institute Issues Public Comment on Fish & Wildlife Service Proposed Rule

  • Mar 23, 2020
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Targeted News Service

WASHINGTON, March 23 -- Philip D. Moeller, executive vice president for business operations group and regulatory affairs at the Edison Electric Institute, has issued a public comment on the Fish and Wildlife Service's proposed rule entitled "Take of Migratory Birds". The comment was written and posted on March 19, 2020:

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The Edison Electric Institute (EEI) appreciates the opportunity to submit comments to the U.S. Fish and Wildlife Service (Service) on the proposed rule Regulations Governing Take of Migratory Birds (Proposed Take Definition Rule or Proposal). 85 Fed. Reg. 5,915 (Feb 3, 2020). The proposal defines the scope of the Migratory Bird Treaty Act (MBTA) as it applies to conduct resulting in the injury or death of migratory birds and would clarify that criminal liability for pursuing, hunting, taking, capturing, or killing migratory birds or attempting to do the same is limited to intentional actions directed at migratory birds, their nests, or their eggs. See id.

EEI is the association that represents all U.S. investor-owned electric companies. Our members provide electricity for more than 220 million Americans and operate in all 50 states and the District of Columbia. As a whole, the electric power industry supports more than seven million jobs in communities across the United States. EEI member companies invest more than $110 billion dollars annually to make the energy grid smarter, cleaner, more dynamic, more flexible, and more secure in order to provide affordable and reliable electricity to customers.

EEI members operate, build, and deploy critical infrastructure--such as transmission and distribution power lines and power generation facilities-- and have a long history of implementing strategies to minimize and mitigate the impact that this critical infrastructure has on migratory birds and other wildlife. EEI's members have long collaborated with both environmental non-profit organizations and the Service to develop and implement avian protection policies, fund innovative avian protection research, and support conservation and education efforts through publications and workshops.

EEI's members remain committed to minimizing incidental bird takes and look forward to working with the Service to advance avian protection associated with critical energy infrastructure. Please contact Sarah Ball (202-508-5208) or Riaz Mohammed (202-5085036) if you have any questions about EEI's comments.

Sincerely,

Philip D. Moeller

cc: Hon. Aurelia Skipwith, Director, U.S. Fish and Wildlife Service

Jerome Ford, Assistant Director, Migratory Birds, U.S. Fish and Wildlife Service

Timothy Williams, Director, Intergovernmental and External Affairs, Department of the Interior

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The Edison Electric Institute (EEI) appreciates the opportunity to submit comments to the U.S. Fish and Wildlife Service's (Service) on the proposed rule Regulations Governing Take of Migratory Birds (Proposed Take Definition Rule or Proposal), which defines the scope of the Migratory Bird Treaty Act (MBTA) as it applies to conduct resulting in the injury or death of migratory birds. 85 Fed. Reg. 5,915 (Feb 3, 2020). The Proposed Take Definition Rule is consistent with the Department of the Interior (DOI or Department) Solicitor's Opinion, M-37050 "The Migratory Bird Treaty Act Does Not Prohibit Incidental Take" (M-Opinion), which concluded that the MBTA's prohibitions on "pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs." See DOI, Office of the Solicitor, Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take (Dec. 22, 2017). The Proposed Take Definition Rule, consistent with the M-Opinion, proposes to adopt a regulation clarifying that the scope of MBTA only extends to conduct intentionally taking birds. See 85 Fed. Reg. at 5,916.

EEI is the association that represents all U.S. investor-owned electric companies. Our members provide electricity for more than 220 million Americans and operate in all 50 states and the District of Columbia. As a whole, the electric power industry supports more than seven million jobs in communities across the United States. EEI member companies invest more than $110 billion annually to make the energy grid smarter, cleaner, more dynamic, more flexible, and more secure in order to provide affordable and reliable electricity to customers./1

EEI members operate, build, and deploy critical infrastructure--such as transmission and distribution power lines and power generation facilities--and have a long history of implementing strategies to minimize and mitigate the impact that this critical infrastructure has on migratory birds and other wildlife. For more than 30 years, EEI members have collaborated with both environmental non-profit organizations and the Service to develop and implement avian protection policies, fund innovative avian protection research, and partner with nonprofit and governmental organizations to support conservation efforts through publications and workshops. Despite these efforts, this critical infrastructure can become the source of collisions and electrocutions resulting in incidental avian take. As a result, EEI's members, which are the owners, operators, or proponents of critical infrastructure, have a compelling interest in the proposed regulation governing take of migratory birds.

The electric power industry is in the middle of a profound, long-term transformation in how electricity is generated, transmitted, and used. This transformation is being driven by a wide range of factors, including: declining costs for natural gas and renewable energy resources; technological improvements; changing customer expectations; federal and state regulations and policies; and, the increasing use of distributed energy resources. As a result, the mix of resources used to generate electricity has changed dramatically over the last decade and is increasingly clean. In 2018, natural gas surpassed coal as the main source of electricity generation in the United States for the third year in a row, with natural gas-based generation powering 35.2 percent of the country's electricity and non-emitting generation comprising 37.2 percent of all generation--compared to coal-based generation at 27.5 percent./2

Since 2014, more than half of the industry's investments in new electricity generation have been in wind and solar generation resources,/3 and nearly 40 percent of America's electricity now comes from carbon-free resources, including nuclear power, hydropower, solar, and wind./4

Further, EIA conservatively projects that the United States will add 72 gigawatts (GW) of new wind and solar capacity between 2018 and 2021 alone and that, long-term, demand for new electric generating capacity will be met by renewables and efficient natural gas as older coal-based and less-efficient natural gas-based generating units retire./5

States are expecting to rely on electrification of other sectors to achieve clean energy and climate goals, as mitigating the impacts of climate change continues to be an essential public policy challenge.

These changes to the generation fuel mix have had a beneficial impact on the sector's GHG emissions. As of the end of 2018, the electric power sector has reduced its carbon dioxide (CO2) emissions by 27 percent compared with near peak levels in 2005--the lowest level in nearly 30 years./6

EEI's member companies have reduced their CO2 emissions even more dramatically to approximately 37 percent below 2005 levels./7

And these reductions will continue: EEI's member companies are on a path to reduce CO2 emissions at least 50 percent by 2030 and potentially 80 percent or more by 2050 compared to 2005 levels while keeping electricity affordable and reliable./8

The Proposed Take Definition Rule and the codification of Opinion M-37050 would provide regulatory certainty for electric generating companies in their efforts to provide reliable, affordable, and increasingly clean power for all customers.

A. EEI Members Engage in Extensive Avian Protective Measures to Protect Migratory Birds.

EEI member companies have a long history of implementing avian protection measures to minimize incidental take of migratory birds, and EEI's members remain committed to employing a suite of avoidance, minimization, and mitigation measures to address incidental take of migratory birds even if the Service finalizes the Proposed Take Definition Rule to codify the M-Opinion. While there is no universal mitigation strategy available to every electric company due to a wide variety of factors including geography, wildlife diversity, and system reliability requirements, the industry has been engaged since 1989 in partnership with both the Service and non-governmental organizations to develop and implement avian protection policies, fund innovative avian protection research, and educate through publications and workshops. This collaboration is facilitated through the Avian Power Line Interaction Committee (APLIC)--of which EEI is a founding member. APLIC--in partnership with the Service--developed Avian Protection Plan (APP) Guidelines in 2005 (Guidelines) to assist companies in creating voluntary programs tailored to their needs and unique risks to reduce incidental takes resulting from avian interactions with electric utility facilities./9

An APP is a company-specific program designed to reduce the operational and avian risks that result from avian interactions with electric facilities, such as transmission and distribution lines and electrical substations. Many electric companies rely on these voluntary Guidelines to develop company- and territory-specific APPs, which typically include construction design standards to reduce avian interactions, nest management procedures, monitoring and reporting systems to track avian mortalities, mortality reduction measures such as retrofitting power poles, employee training, and avian enhancement programs. Electric companies invest time and financial resources to develop and implement their APPs.

For example, EEI member Entergy serves customers in Arkansas, Louisiana, Mississippi and Texas, and the company has an APP which includes proactive and reactive components including avian-friendly construction standards and a retrofitting program for existing infrastructure. Entergy builds new distribution and transmission lines to Entergy-specific avian standards derived from the Guidelines. Entergy also ensures that older distribution lines undergoing work are retrofitted to the most recent avian standards and transmission projects are scoped to determine if avian flight diverters should be placed to reduce and mitigate collisions.

Many EEI members follow similar approaches, and several have developed company-specific efforts to reduce any incidental take of migratory birds and protect avian resources. These tailored efforts help to further conservation goals, reduce service outages, minimize equipment damage, lower outage restoration costs, and increase system reliability. EEI members have a clear and strong commitment to avian protection and will continue to implement a variety of strategies to avoid, minimize, and reduce incidental take of migratory birds.

B. Codifying That the MBTA Only Applies to Actions Directed at Migratory Birds Will Provide EEI Members with Needed Regulatory Certainty.

EEI members own and operate critical infrastructure projects that cross state lines. Given the Service's inconsistent approach to the scope of the MBTA regarding incidental take of migratory birds and conflicting judicial rulings on the scope of incidental take restrictions, EEI's members are in an untenable position: some avian actions may be legal in one jurisdiction, potentially subject to prosecutorial discretion in another. U.S. Courts of Appeals for the Fifth, Eighth, and Ninth Circuits have held that the MBTA prohibits only intentional take of migratory birds. See United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015); Newton Cty. Wildlife Assoc. v. United States Forest Serv., 113 F.3d 110 (8th Cir. 1997); Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. 1991). However, the Second and Tenth Circuits have held that the MBTA also prohibits incidental take. See United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010); United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978). For jurisdictions that hold that the MBTA applies to incidental take, EEI members have no straightforward path to comply with the requirements of the MBTA while continuing to provide affordable, reliable electricity to customers./10

Further, the current risk of criminal liability paired with limited means for regulatory relief may hinder the development of energy projects that are an essential part of EEI members' clean energy journey. Some project financers have refused to support energy development projects unless the company can obtain a permit that would allow for the incidental take of migratory birds. This results in limiting financing options and could hinder the ability of EEI's members to continue the clean energy transformation that is underway and the delivery of clean, reliable, and affordable energy power. The Proposed Take Definitional Rule--by stating that the MBTA does not prohibit the incidental take of migratory birds--would address these concerns by applying a uniform interpretation across the country and resolve the existing patchwork application of the MBTA and provide regulatory certainty to EEI members as they maintain and construct needed critical infrastructure.

C. The Proposed Take Rule's Statutory Interpretation of the MBTA Is Appropriate

The Department's statutory interpretation of the MBTA in the M-Opinion excludes liability for incidental take of migratory birds as does the Service's proposal to codify this M-Opinion in its regulations. 85 Fed. Reg. at 5,916. The M-Opinion states that "consistent with the text, history, and purpose of the MBTA, the statute's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs." M-Opinion at 2. DOI's interpretation of the MBTA in the current M-Opinion is therefore that a take or killing of a migratory bird, its nest, or eggs does not violate the Act if it is incidental to another lawful activity. This stands in direct contrast to DOI's interpretation of the Act in the Department's prior Opinion M-37041, which was that any legal activity that foreseeably could cause the take or killing of a migratory bird violates the Act. See DOI Office of the Solicitor, Opinion M-37041, Incidental Take Prohibited Under the Migratory Bird Treaty (Jan. 10, 2017) (Opinion M37041).

However, the statutory interpretation embodied in the M-Opinion and in the Proposed Take Definition Rule is consistent with the language of the statute, and its legislative history and purpose, and avoids criminal liability for ordinary, every-day activities. The Department has strong reasons for interpreting the MBTA to avoid criminalizing any action that could unintentionally result in a bird death, which would lead to absurd results wholly divorced from the statute's original intent, and the Proposed Take Definition Rule accomplishes this goal.

The previous interpretation of the MBTA outlined in Opinion M-37041 creates the explicit risk of criminal prosecution for performing otherwise legal business activities, including those undertaken by EEI members to provide electricity to customers, a public good in and of itself. There is no reasonable way for the industry to completely mitigate this risk, and avoidance of migratory birds can require cost-prohibitive monitoring programs/11--both pre-project and ongoing--that might not necessarily lead to avoided takes of migratory birds. Under the conclusions outlined in Opinion M-37041, the owner of an electric transmission and distribution lines could be criminally liable if a migratory bird flies into the line and is injured or dies. Similarly, the owner of a wind farm could be imprisoned for up to six months if a migratory bird flies into a wind turbine./12

Under these scenarios, EEI members would not have intended to harm birds and would have no way to totally mitigate the risks that birds may be harmed, but would face the threat of criminal enforcement. Criminal enforcement is something that all companies want to avoid, given the potential penalties and reputational harm, as well the potential to lose investors. As a result, members may be forced to undertake mitigation efforts to that are disproportionate to the potential harm to birds and that fail to account for the other considerations that electric companies must balance: namely, the obligation to provide affordable, reliable, and increasingly clean power.

The Proposed Take Definition Rule and M-Opinion resolve these concerns. Both are supported by the language of the MBTA and, as discussed supra, a majority of courts have held that "take" in the context of the MBTA "describes physical conduct of the sort engaged in by hunters and poachers," and "is limited to deliberate acts done directly and intentionally to migratory birds." See United States v. CITGO, 801 F.3d at 489; Seattle Audubon Society v. Evans, 952 F.2d at 297. Defining unintentional killings, such as bird deaths from a collision with a wind turbine or electrocution on a power line, as a "take" is inconsistent with this interpretation and other activities prohibited under the MBTA (pursue, hunt, capture, kill), which are all "intended to harm birds or to exploit harm to birds, such as hunting and trapping, and trafficking in birds and bird parts." See Mahler v. U.S. Forest Service, 927 F. Supp. 1559 (S.D. Ind. 1996).

Congress's different use of the term "take" in other statutes emphasizes that the common law interpretation applies to "take" under the MBTA. Unlike the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA), the MBTA does not include a broad definition of "take." The ESA specifically defines "take" to include harassing and harming and the MMPA defines "take" to mean "harass, hunt, capture, or kill, or attempt to harass, hunt, capture or kill any marine mammal." See 16 U.S.C. Sec. 1532(19), and 16 U.S.C. Sec. 1372(a) (emphasis added). Defining "take" to include actions like harming and harassing demonstrates that Congress expanded the definition of "take" in those statutes from its common law roots. The Proposed Take Definition Rule and the M-Opinion are well-supported in adopting the more limited common law definition of "take" under the MBTA as a way of avoiding criminalizing everyday activities. The Service should finalize this approach to eliminate the regulatory and litigation uncertainty regarding the incidental take of migratory birds.

EEI's members remain committed to minimizing incidental bird takes and look forward to working with the Service to advance avian protection associated with critical energy infrastructure. Please contact Sarah Ball (sball@eei.org)(202-508-5208) or Riaz Mohammed (rmohammed@eei.org)(202-5085036) if you have any questions about EEI's comments.

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Footnotes:

1/ See EEI, Industry Data, Statistical Highlights: Capacity and Generation (2018), http://www.eei.org/resourcesandmedia/industrydataanalysis/industrydata/Pages/default.as px.

2/ See Department of Energy, Energy Information Administration (EIA), What is U.S. Electricity Generation By Energy Source (Oct. 2019), https://www.eia.gov/tools/faqs/faq.php?id=427&t=3.

3/ See EIA, Nearly Half of Utility-Scale Capacity Installed in 2017 Came from Renewables (Jan. 10, 2018), https://www.eia.gov/todayinenergy/detail.php?id=34472. See also EEI, Industry Data, Statistical Highlights: Capacity and Generation (2018), http://www.eei.org/resourcesandmedia/industrydataanalysis/industrydata/Pages/default.as px.

4/ See EIA, Electricity Explained: Electricity in the United States (Apr. 2018), https://www.eia.gov/energyexplained/index.php?page=electricity_in_the_united_states.

5/ See EIA, Annual Energy Outlook 2019: With Projections to 2050 (Jan. 24, 2019) at 94, 96, https://www.eia.gov/outlooks/aeo/pdf/aeo2019.pdf. While EIA notes in the Annual Energy Outlook (AEO) that the amount of renewable and natural gas-based generation deployed are dependent on the price of natural gas, this does not impact the expected closure of coal-based and other less efficient generation. See id. at 108.

6/ Final data for 2019 is not yet available but is expected to show continued decreases in CO2 emissions from electricity generation.

7/ Based on an EEI analysis of CO2 emissions data from ABB Velocity Suite.

8/ Many EEI member companies have announced significant voluntary commitments to further reduce CO2 emissions between 2030 and 2050, many of which aim to reduce emissions 80 percent below 2005 levels by 2050. These commitments are attached here as Appendix A.

9/ Avian Protection Plan Guidelines (Apr. 2005), http://www.aplic.org/uploads/files/2634/APPguidelines_final-draft_Aprl2005.pdf.

10/ Under the current enforcement regime for the MBTA, the Service approaches the first bird strike as a civil matter and the second as criminal--an approach that is not codified in the underlying statute.

11/ Currently there are more than 1,000 species of birds protected under the MBTA. See https://www.fws.gov/birds/management/managed-species/migratory-bird-treaty-actprotected-species.php.

12/ See 16 U.S.C. Sec. 703 (specifying a maximum penalty of $15,000 and six months in prison).

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=FWS-HQ-MB-2018-0090-0002

TARGETED NEWS SERVICE (founded 2004) features non-partisan 'edited journalism' news briefs and information for news organizations, public policy groups and individuals; as well as 'gathered' public policy information, including news releases, reports, speeches. For more information contact MYRON STRUCK, editor, editor@targetednews.com, Springfield, Virginia; 703/304-1897; https://targetednews.com

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