Animal Law Review

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The Migratory Bird Treaty Act (MBTA) has proven invaluable in minimizing the destruction of the 240 avian species listed by its enforcement agency, the United States Fish and Wildlife Service (FWS), as “endangered or threatened” or “birds of conservation concern.”Recently, however, the Act is faced with a new challenge: How can it continue to achieve its objective when a highly desirable domestic source of sustainable energy—wind power—is experiencing unprecedented growth? Ever-larger wind projects propelled by giant turbines have become a serious danger to the existence of migratory birds and their natural habitats. Yet most policy makers strongly welcome and support continued expansion of wind power, and are reluctant to permit impediments to halt or restrict its growth. The growing conflict between the goals of protecting migratory birds and producing more wind power should be reconciled. This Article proposes three basic policy revisions: (1) authorization for the FWS to issue incidental take permits to wind power developers; (2) creation of a uniform standard for assessing avian impacts; and (3) amendment of the MBTA to allow for civil sanctions and citizen suits. Although “big wheels in the sky” must keep on turning and expanding to help reduce America’s dependence on fossil fuels and foreign energy sources, this worthy objective must be pursued without weakening federal protection of migratory birds.

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