Renewable energy vs. wildlife conservation - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 78

Identifying species of concern
Federal laws in the United States protect a long list of specifically identified
species. 24 The Endangered Species Act (ESA) 25 makes it unlawful to “take”
any threatened or endangered species on that list. 26 Among other things, to
“take” an animal under the ESA means to “harass, harm …, wound, kill
…, or collect” it. 27 Renewable energy facilities that harm, harass, wound
or kill protected animals can certainly fall within the scope of that broad
definition.28 28 Hefty fines and as much as a year of jail time can attach to
violations of the statute. 29
Under the ESA, developers of real estate projects of any kind that may
adversely affect any threatened or endangered species must first consult
with the U.S. Fish and Wildlife Service (FWS), the government agency
primarily responsible for administering the statute. Species listed as “endan-
gered” are those that the FWS deems to be “in danger of extinction in all or
a significant portion” of their range. 30 Species that are “likely to become”
endangered “in the foreseeable future” are designated as “threatened” and
also qualify for protection. 31
Unfortunately, renewable energy developers cannot rely solely on
published species lists or straightforward guidelines to determine their
ESA compliance obligations in connection with a potential renewable
energy project. Even species that are not presently listed as endangered or
threatened may be “species of concern” entitled to protection under the
ESA in some circumstances. 32 Complicating matters even further is the fact
that the ESA does not even encompass the full set of wildlife protection laws
potentially implicated by a renewable energy project. Multiple separate
protection statutes exist in the United States for certain types of birds as
well. 33
Outside of the United States, many nations have similar wildlife protection
laws. For example, the European Union has enacted significant endan-
gered species protection legislation comparable to the ESA. 34 Renewable
energy developers in all corners of the world must therefore be careful to
adequately educate themselves about the regulatory regime and require-
ments applicable in their jurisdictions, even when their projects would seem
to have no obvious impacts on endangered species.
Estimating likely impacts on species of concern
If it is determined that a proposed renewable energy project is likely to
harm a species of concern, the debate then often shifts to questions about
the severity of the harm. Numerous factors can influence the severity of a
renewable energy project's impact on an important animal population. For
instance, when a threatened animal population is very small in number,
even minor habitat or food cycle disruptions can have material impacts so
more stringent restrictions may be warranted. Likewise, animals with long