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Does Wind Get Off Easy?

When birds die due to oil or chemical exposure at an oil company's storage or waste-water facility, the company may be prosecuted for violating the Migratory Bird Treaty Act. Exxon-Mobil, for example, recently pled guilty to killing 85 birds protected under the MTBA. The oil giant will pay $600,000 in fines, and several million more to implement a compliance plan to prevent bird deaths in the future.

Exxon-Mobil's not alone. Electric utilities are also prosecuted when protected birds are killed by poorly insulated transmission lines. And yet not all power produces are prosecuted for the accidental killing of protected birds.

As the Entergy Tribune's Robert Bryce detailed in the Wall Street Journal, wind power kills more protected birds than Exxon-Mobil's refineries, and yet gets a free pass.

A July 2008 study of the wind farm at Altamont Pass, Calif., estimated that its turbines kill an average of 80 golden eagles per year. The study, funded by the Alameda County Community Development Agency, also estimated that about 10,000 birds—nearly all protected by the migratory bird act—are being whacked every year at Altamont.

Altamont's turbines, located about 30 miles east of Oakland, Calif., kill more than 100 times as many birds as Exxon's tanks, and they do so every year. But the Altamont Pass wind farm does not face the same threat of prosecution, even though the bird kills at Altamont have been repeatedly documented by biologists since the mid-1990s.

The number of birds killed by wind turbines is highly variable. And biologists believe Altamont, which uses older turbine technology, may be the worst example. But that said, the carnage there likely represents only a fraction of the number of birds killed by windmills. Michael Fry of the American Bird Conservancy estimates that U.S. wind turbines kill between 75,000 and 275,000 birds per year. Yet the Justice Department is not bringing cases against wind companies.

The problem of bird kills from wind power are well documented. A 2001 report on avian mortality by the National Wind Coordinating Council estimated wind power was responsible for 33,000 bird kills per year, the vast majority of which are protected under federal law. The American Wind Energy Association estimates bird mortality rates are, on average, "one to six per year or less" per megawatt of wind power capacity in the United States. Given the U.S. had 25,000 megawatts of installed wind capacity in the U.S., wind power could be responsible for as many as 150,000 bird kills per year. How many will die if wind production increases ten-fold or more to meet proposed renewable energy mandates? (And will we consider that actual wind output can be far less than installed capacity.)

Wind power is hardly the only thing that kills birds. Bird kills are a problem with many tall structures, and other energy sources are hardly without their problems. All things considered, wind may be preferable to available alternatives (even if it cannot provide base load capacity) and could be an important part of America's energy supply in the future. Yet it seems clear that when it comes to killing protected birds, traditional energy companies face federal prosecution, while wind energy gets a pass.

One reason for the special treatment is that it is easier to reduce bird kills at traditional energy facilities than a wind farm. In Exxon-Mobil's case, netting can keep birds away from potential contamination sources. There's no comparably easy fix for wind farms -- at least not yet. So federal prosecutors may target enforcement efforts where they can maximize the environmental results. It's also possible that there's no political benefit to going after "green" energy.

PersonFromPorlock:
Well, wind energy is just the golden boy of the sustainable energy movement at the moment. I suspect that the wind-power industry has got its hooks pretty deep in the government and all else follows from that.
9.14.2009 7:19am
martinned (mail) (www):
Surprise, surprise: Conservative "scholar" looking to find new and innovative ways to get a major corporation off the hook.
9.14.2009 7:44am
Daniel Chapman (mail):
I didn't click the link or read the whole article... Did anyone argue that Exxon should be given the same free pass as wind farms?
9.14.2009 7:54am
John (mail):
"It's also possible that there's no political benefit to going after "green" energy."

That comes a little late in the presentation, I would think.
9.14.2009 8:22am
subpatre (mail):
[channeling martinned] Windows. Don’t forget the deaths from those lethal, glass, fake openings that evil, greedy oil-cartel corporations have deliberately installed on most of their buildings. [end sarcasm]


The mortality was 85 birds in five different states over a five year period. There isn’t a trucking company that kills fewer migratory birds than that. For that matter, most people’s homes —if tracked and recorded— would give that record a run for the money. Realistically a small housing subdivision, complete with pets [cats kill one billion birds nationwide] kills more protected species per year than Exxon-Mobil’s entire US operations over a five year period.

Daniel Chapman asks, “Did anyone argue that Exxon should be given the same free pass as wind farms?”

Not yet, but don’t be surprised when a non-wind energy corporation demands equal treatment.
The Migratory Bird Treaty Act, enacted in 1918 . . . creates a misdemeanor criminal sanction for the unpermitted taking of listed species by any means and in any manner regardless of fault. The maximum penalty for a corporate taking under the MBTA is $15,000, or twice the gross gain or loss resulting from the offense, and five years probation.

Although realistic treatment (corporate versus non-corporate penalties) isn’t to be obtained from this law, corporations should expect equal treatment. Assuming that bird-strike figures are within an order of magnitude, wind-energy is ‘worth’ upwards of $2 billion per year in fines.
9.14.2009 8:29am
Ariel:
FWIW, wind might be able to produce baseload capacity. There are folks trying out molten salt as a sort of battery that would allow wind and solar to provide baseload capacity. The way it works is that the wind or solar energy heats and melts the salt, the molten salt releases the energy as heat very slowly, the heat turns a turbine, etc. Because the molten salt hold the heat for a long time and only releases it very slowly, it can change the irregularity of wind or solar power into a regular energy source. That said, there's a cost in terms of efficiency. And this is not fully proved out yet - but there was a WSJ article about it, about 1.5 yrs. ago, so maybe its further along by now.
9.14.2009 8:51am
mf24 (mail):
No Blood for Wind!
9.14.2009 8:54am
Cato The Elder (mail) (www):
Why is it you have so many opinions on American public policy, martinned? Isn't there anyone sinning against the ECHR in say, Rotterdam, that you could better devote your atttention towards? In the US, we like to think carefully about the benefits of laws and regulations, whether they make economic and moral sense -- not so much for expressive reasons. YMMV.
9.14.2009 9:19am
JB:
The birds will die anyway if catastrophic climate change occurs. I don't want to get into that debate, but if we assume that anthropogenic climate change is real and catastrophic it follows that we should build wind plants regardless of bird deaths.
9.14.2009 9:25am
Cato The Elder (mail) (www):

FWIW, wind might be able to produce baseload capacity. There are folks trying out molten salt as a sort of battery that would allow wind and solar to provide baseload capacity. The way it works is that the wind or solar energy heats and melts the salt, the molten salt releases the energy as heat very slowly, the heat turns a turbine, etc. Because the molten salt hold the heat for a long time and only releases it very slowly, it can change the irregularity of wind or solar power into a regular energy source. That said, there's a cost in terms of efficiency. And this is not fully proved out yet - but there was a WSJ article about it, about 1.5 yrs. ago, so maybe its further along by now.

IIRC these installations require a massive amount of space --- I'm recalling off a mental picture of a mock proposal here -- and also I believe the discusson about using molten salt to store energy has been linked more to improving the efficiency of nuclear reactors.
9.14.2009 9:34am
Gabriel McCall (mail):
Might Exxon have an Equal Protection argument arising from the inconsistent enforcement?
9.14.2009 9:41am
gasman (mail):

Surprise, surprise: Conservative "scholar" looking to find new and innovative ways to get a major corporation off the hook.

Not off the hook, but perhaps it could be suggested that they receive equal treatment under the law. Selective prosecution of persons or corporations that are perceived as bad is just plan unfair. And everyone recognizes the unfairness of selective prosecution even if only when they are caught while the guy next to them gets a pass.
9.14.2009 9:41am
Doc merlin (mail):
Wind is politically favored, duh.
When politics can decides economic winners and losers, you will end up with this sort of behavior.
9.14.2009 9:44am
cat fancier:
My cat, over the last year, has killed more migratory birds than Exxon-Mobile got fined $600,000 for killing. Actually he's not my cat; I'm his servant. So when you send the bill for the fine, please make it out to Muffin, not me.
9.14.2009 10:14am
Allan Walstad (mail):

wind or solar energy heats and melts the salt, the molten salt releases the energy as heat very slowly, the heat turns a turbine, etc.

I've heard of using molten salt to store heat for solar heating of homes and other buildings. But using that heat to generate electric power runs into a huge thermal efficiency problem unless you can get the stuff to sit around at temperatures similar to the inside of a coal furnace or nuclear reactor. I'm skeptical.

...if we assume that anthropogenic climate change is real and catastrophic it follows that we should build wind plants regardless of bird deaths.

The problem is, of course, that wind can never be expected to supply more than a small percentage of our energy needs. Going long on direct solar would seem to offer more hope, since the collectors are getting more efficient and the costs are coming down.

Responding to another comment: It's true of course that lots of birds are killed by cars and trucks and cats, but probably not a high proportion eagles and other protected species, as compared with the proportion that would be killed by wind turbines on otherwise undeveloped mountaintops.
9.14.2009 10:20am
M. Gross (mail):
It's unlikely traditional energy companies will complain too much about it, many of them are well invested in wind power themselves.

Exxon's the notable exception (They have really tried to concentrate on their core business, natural gas and oil) but most other majors hold pretty significant interests.
9.14.2009 10:30am
Dilan Esper (mail) (www):
it was established in the 1960's that when woodstock came to altamont, bad things would happen.
9.14.2009 10:52am
Houston Lawyer:
Why are cats not regulated?
9.14.2009 11:07am
DangerMouse:
Why can't they put a big net over the wind farms? Like a big teepee or someting? Just like raising a tent, over the entire thing.
9.14.2009 11:13am
Cump (mail) (www):
Gee, I don't suppose it's because oil has been around forever and agencies have procedures in place while large-scale wind is pretty new and, being the gov't, they're slow to react to new tech?
9.14.2009 11:19am
MartyA:
Yeah, but this only a temporary problem. Once some minor technical issues are resolved, Obama will replace wind power with fuel processed from unicorn urine. It will create (save) millions of jobs and won't be expensive (once the unicorn breeding facilities can be built in the key selected inner cities).
9.14.2009 11:35am
Eli Rabett (www):
One lesson learned from Altamont and other early installations was that the windmills killed many fewer birds with fewer longer blades moving more slowly using gearing to run the generator. Rapidly rotating smaller blades are both less efficient for electric generation and more dangerous to birds. Another is not to put a windfarm in the middle of a migratory flyway or a mountain pass, or if you do, idle it during the migratory season. The bird kills at Altamont were where much of this was learned, and are not representative of modern wind farms, the latter being much, much lower.

Anyone citing Altamont as typical gets a double minor, but then again, this is typical.
9.14.2009 11:55am
Jonathan H. Adler (mail) (www):
Rabett --

Who cited Altamont as typical? The article says it may be the "worst example," and both it and I cite data from the wind industry, hardly a source likely to inflate the numbers.

JHA
9.14.2009 12:00pm
David Hardy (mail) (www):
As I recall from my Interior Dept days, the big issue (i.e., the one nobody wanted to talk about) was wind farms killing bald eagles. Who are not just protected by the MBTA, but also by the Endangered Species Act (in most of the US, then, anyway) and the Eagle Act.
9.14.2009 12:17pm
Mike S.:
Well, there is the question of whether the risk to bird is inherent in the activity or the side effect of sloppy procedures. In the case of birds flying into windmills it is the former, in the case of birds slimed in oil storage tanks it is the latter.
9.14.2009 12:22pm
Bob Dole (mail):
@Houston Lawyer:
because cat owners would start killing politicians, nothing in the world is quite so crazy as a cat owner.
9.14.2009 12:57pm
martinned (mail) (www):

Why is it you have so many opinions on American public policy, martinned? Isn't there anyone sinning against the ECHR in say, Rotterdam, that you could better devote your atttention towards? In the US, we like to think carefully about the benefits of laws and regulations, whether they make economic and moral sense -- not so much for expressive reasons. YMMV.


@Cato the Elder: I actually rather like this blog. It tends to generate interesting debate, following interesting posts. I know of no blog on my side of the Atlantic that has similarly mature conversation. I hope you're not suggesting that I'm not allowed to have an opinion about US public policy?

My snark this morning was just based on a) me being in a bad mood for reasons unrelated to this blog, and b) the increasing tendency of some conspirators to blog about things that aren't only not law, but also cliché conservative. (Adler today posted twice about creationism/evolution and once about toy safety laws, in addition to his post previewing the new SCOTUS term.) I would very much appreciate it, for example, if David Bernstein could take his flame war with Human Rights Watch somewhere else.
9.14.2009 1:41pm
SeaDrive:

http://tinyurl.com/mpaoek


Someone should put in a word in defense of bats.
9.14.2009 2:37pm
Fub:
David Hardy wrote at 9.14.2009 12:17pm:
As I recall from my Interior Dept days, the big issue (i.e., the one nobody wanted to talk about) was wind farms killing bald eagles.
I wonder if "nobody wanted to talk about [it]" because it was even then generally considered to have little or no supporting evidence.

Since the bald eagle was removed from the endangered species list in 2007, and wind turbines were never established as major contributors to prior population declines, it seems reasonable (though not conclusive) to infer that there never existed any significant danger from wind turbine installations.
9.14.2009 3:06pm
Splunge:
There are folks trying out molten salt as a sort of battery

Not folks who have passed a course on thermodynamics, I trust. On its face this is a monumentally stupid idea. You get the energy from a windmill as electricity, i.e. pure useful work. The idea is then to destroy this work, convert it to heat, then push the heat into the salt, put up with your thermal losses (the salt not being perfectly insulated), and then run a heat engine from the hot salt, putting up with another layer of thermodynamic losses (most heat engines being at most 30% efficient)?

As opposed to just putting the electricity in a battery, where you can get nearly all of it back? Madness.
9.14.2009 4:31pm
PersonFromPorlock:
cat fancier:

My cat, over the last year, has killed more migratory birds than Exxon-Mobile got fined $600,000 for killing. Actually he's not my cat; I'm his servant. So when you send the bill for the fine, please make it out to Muffin, not me.

The problem here is your cat's name. Just as Pee Wee Herman was compelled to demonstrate his non-PeeWeeness, so "Muffin" must counter the charge of 'Muffin-ness' by wreaking great slaughter. Rename him "Tiger" and have done.
9.14.2009 5:07pm
ReaderY:
Generally speaking, enforcement should be more even on economic regulation then on social regulation. If wind energy justifies violating the law, the law should be changed.

Situations where people create apparently general rules and then simply ignore them where they don't like the result are all too common. In some cases rules were never intended to have the claimed reach. But this is not one of them.
9.14.2009 5:43pm
Gringo (mail):
From Environmental Impacts of Wind-Energy Projects (2007), National Academies Press.
Having said the above, we provide here estimates summarized by Erickson et al. (2005) and estimates reported by the U.S. Fish and Wildlife Service (USFWS 2002a). Those sources emphasize the uncertainty in the estimates, but the numbers are so large that they are not obscured even by the uncertainty. Collisions with buildings kill 97 to 976 million birds annually; collisions with high-tension lines kill at least 130 million birds, perhaps more than 1 billion; collisions with communications towers kill between 4 and 5 million based on “conservative estimates,” but could be as high as 50 million; cars may kill 80 million birds per year; and collisions with wind turbines killed an estimated 20,000 to 37,000 birds per year in 2003, with all but 9,200 of those deaths occurring in California. Toxic chemicals, including pesticides, kill more than 72 million birds each year, while domestic cats are estimated to kill hundreds of millions of songbirds and other species each year. Erickson et al. (2005) estimate that total cumulative bird mortality in the United States “may easily approach 1 billion birds per year.”
Clearly, bird deaths caused by wind turbines are a minute fraction of the total anthropogenic bird deaths—less than 0.003% in 2003 based on the estimates of Erickson et al. (2005).
Overall, the number of birds killed by Exxon or by wind turbines is trivial.
9.14.2009 5:52pm
Mike McDougal:

As opposed to just putting the electricity in a battery, where you can get nearly all of it back? Madness.

You might have heard that batteries are expensive.
9.14.2009 7:24pm
Crunchy Frog:
IMHO, any bird stupid enough to fly into a windmill is better off not polluting the gene pool. The wind farms are providing a valuable herd-culling service.

One method of storing excess wind energy is pumping water up from a lower reservoir to an upper one at night, when demand is low, then using that stored potential energy to drive turbines to supplement peak demand during the day.
9.14.2009 7:58pm
Eli Rabett (www):
Adler, Eli is less than impressed by a quote that takes two paragraphs to discuss bird kills at Altamont in the context of a fine on Exxon for bird kills, and then sort of modifies it by saying

And biologists believe Altamont, which uses older turbine technology, may be the worst example. But that said, the carnage there likely represents only a fraction of the number of birds killed by windmills.


Sort of like saying David Bernstein's cutting off of comments when he attacks some one may be the most disreputable tactic on Volokh.

Maybe
9.14.2009 9:23pm
Splunge:
You might have heard that batteries are expensive.

Relative to what? Wind turbines? Ha ha.

Besides, I thought the New Firm was all about energy efficiency over everything. If you want to go all 20th century and start talking about the most economical way to generate electricity -- well, it ain't wind, that's for sure.

Besides, economic efficiency is exactly the kind of question the free market sorts out very well, and then where's the need for a government czar to issue mandates and policies and set the benighted country on the path of righteousness, huh? Get with the program!
9.14.2009 10:18pm
Perseus (mail):
Adler, Eli is less than impressed

I'll see your illeism and raise you a nosism:

Eli, we are not amused.
9.14.2009 10:24pm
Eli Rabett (www):
Persus, Eli should hope not given the tactics being used in this post and elsewhere on the blog by the proprietors.
9.14.2009 11:15pm
Gringo (mail):
Crunchy frog: as you point out,pumping water from a lower reservoir is a valid method for energy storage. Unfortunately, the Great Plains, which constitute our greatest wind energy resource, have neither water nor hills in abundance. Perhaps if the energy is sent a thousand miles away to the reservoir, it could be used.
9.15.2009 12:34am
Toby:
All renewables aren't wind.

Solar thermal has manay advantages over solar PEV in many scenarios. Short version: use mirrors to concetrate sunlight / heat. Use the heat to run traditional setam turbine or run a Stirling engine.

In this scenario, molten salt stages the heat for later use in generation. There is, AFAIK, no windto electricity to thermal store back to electricity system, which would have many of the inneficiencies as suggested above.

For a quick non-technical overview:
MIT Review on Spanish Solar

One house cat in England, carefully tracked by intrepid researchers, killed 140-160 songbirds each and every day - just for fun. House cats, which are a non-native introduced species,are definitiely more harmful to migratory birds than anything Big Oil has been able to come up with.
9.15.2009 8:42am
devil's advocate (mail):

Adler, Eli is less than impressed by a quote that takes two paragraphs to discuss bird kills at Altamont in the context of a fine on Exxon for bird kills, and then sort of modifies it by saying


And biologists believe Altamont, which uses older turbine technology, may be the worst example. But that said, the carnage there likely represents only a fraction of the number of birds killed by windmills.





Sort of like saying David Bernstein's cutting off of comments when he attacks some one may be the most disreputable tactic on Volokh.



Eli,

you seem to confuse the specific and the general. The point of the article Adler quotes is that Exxon got fined and Altamont did not. It is irrelevant whether Altamont is representative of the wind industry insofar as that equal protection argument goes (martinnned: you do understand that equal protection is a legal concept. Of course administrative law has made complete hash of the concept and deference to agencies unequal enforcement is virtually universal, so I don't expect the courts to do anything about it, although they should. There is a much stronger legal argument for just treatment that mandates court interference here than in Mass. v. EPA context) If Altamont were a coal plant, people would be screaming that they be shut down, or forced to adopt the BAT (best available technology) without regard to cost, i.e. tear all the windmills down and put up slow turning ones.

Both Adler and the linked article point out that Altamont is not necessarily representative. So I gather your argument is that it is a cheap shot as evidence of the general proposition. But the article is equally clear that bird kills in open oil facilities had been considered a much larger problem. Even if the industry has much improved its practices, FWS did not seem inclined to give a pass on small numbers of subsequent kills at Exxon facilities. So the obvious question remains, even if new turbines are better, why do they get a pass?

I tend to think the bird issue with windmills much overplayed. But when you look at them fining Exxon for 85 bird deaths, like that is something that matters in the scheme of things, then there is no excuse for not going after wind, except bias.

Remember most of the statutes make no provisions for common sense or possible abatement of the risk of a take. Damn straight it might be harder for wind turbines, but of course the laws don't take that into consideration. Only bureaucrats playing favorites do that.

Brian
9.15.2009 9:20am
Paul A'Barge (mail):
Here's the deal. Birds will just make more birds. Voila. Everything works out for the best.
9.15.2009 10:42am
GaryC (mail):
Toby:

One house cat in England, carefully tracked by intrepid researchers, killed 140-160 songbirds each and every day - just for fun. House cats, which are a non-native introduced species,are definitiely more harmful to migratory birds than anything Big Oil has been able to come up with.

Has nobody in England ever heard the expression "belling the cat"?

It reminds me of the story of the time that Bono was giving a concert in Glasgow. At one point he clapped slowly for a few seconds, and then said, "Every time ... I clap my hands ... a child in Africa ... starves to death ..." To which a (possibly drunk) heckler responded, "Stop f***in' doing it, then!"
9.15.2009 9:16pm

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