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Laura Weingartner Quoted in Law360 Article on California Federal Court Decision re. Wind Farms and Bird Deaths

Ninth Circuit Rules Wind Developers Don’t Need Permits to Cover Bird Deaths or Injuries Before Projects are OK’d

April 1, 2014

Laura Weingartner, Detroit-based member whose practice covers a variety of renewable and alternative energy projects, was quoted in an April 1, 2014 Law360 article, “Wind Project Challenges Over Bird Deaths Fails to Take Off.”

The news story covers a recent decision by Ninth Circuit Court Judge Janis Sammartino, who turned down environmental groups’ arguments that a wind energy farm developer or the Department of Interior needed to secure a permit—under the Migratory Bird Treaty Act—before developing a 186-megawatt wind farm in Southern California.

In the article, Weingartner offers her perspective on the decision: “The courts recognize that there is the concept of incidental take…so they have to rely on the due diligence and effort of the developer.” She added, “They would take that [information] into a more holistic decision and not say, ‘You take one bird and you won’t be able to get your permit.’”

The net effect of this ruling is that neither the Migratory Bird Treaty Act nor the Bald and Golden Eagle Protection Act require a federal agency, acting in its regulatory capacity, to obtain a permit in order to authorize a wind energy facility. Even more narrowly, the possibility of “incidental take” of protected birds under the Migratory Bird Treaty Act likely will not prevent renewable energy developers from gaining approval for future projects on that basis.