Wind of Change: new problems require new laws and new political alignments.

One consistent theme in this blog is that law is not a fixed set of rules applied to new situations as those new situations come up. Rather, as new situations arise, the law changes. This relationship between change and the law is frustrating to a lot of people. Politicians decry the activism of judges who don’t merely “apply the law as it is written.” And my students feel sometimes as if I’m trying to trick them. Most come to law school thinking that what will be really hard is that they’ll have to spend so much time learning so many rules. I tell them over and over again that it is indeed hard to spend so much time reading law. But that’s the easy part. The hard part is when you realize how open-ended and fluid the rules are and begin to understand that the really, really hard part is developing the creatvity and expressive powers necessary to effectively deal with law in an infinitely complex and ever-changing world.

So, for example, I have tried again and again to make clear that there is nothing in our copyright laws that is a necessary and immutable part of treating creators fairly. Rather, what is fair changes as the underlying material reality of creation changes. Our copyright laws our the product of a particular time, including the technologies of creation, the means of disseminating created products, and the intellectual fashions of that time. Since we have experienced and continue to experience a revolution in information technology, our copyright laws are bound to change. So an artist who claims he has “control over any use” of her images is not only wrong; she is also fighting a fight she may not be able to win without the sacrifice of the benefits of our new technologies — benefits we never had before and that we’d really prefer not to sacrifice for the sake of her exclusive control.

So we should not be surprised that changing energy technologies are beginning to realign our entrenched expectations. Ted Kennedy, of course, has long been known as the liberals’ most effective liberal, not least because, in the words of the Nation, he has “been his remarkable capacity to form warm, genuine friendships–more than mere working alliances–with GOP senators.”

But two years ago, when Kennedy worked in the Senate to block Cape Wind, a windmill farm in Nantucket Sound, environmental groups “launched an aggressive advertising and lobbying campaign to persuade Democrats to abandon Kennedy” and called Kennedy’s maneuver a “backroom deal.” The premise of the attacks, of course, was that Kennedy’s maneuver was motivated by the location of the legendary Kennedy compound on Hyannis Port, just 8 miles from the Cape Wind project. Kennedy counter-attacked, arguing that his position was the environmentally sound one. He also asserted that the wind farm would “hurt tourism, one of the area’s key industries.”

Putting aside the merits of Kennedy’s position, it seems plain that developing wind power will create rifts between environmentalists. On the one hand, of course, wind farms are “clean,” generating no waste as a direct result of energy production. On the other hand, wind turbines of sufficient size and sufficient number to make a real impact on energy production cannot help but have effects that not everyone will accept willingly.

I would not necessarily have guessed, however, that wind farms would already and directly be coming into conflict with laws established specifically to protect the environment. But that conflict is quite real in connection with migratory birds, as detailed by John Arnold McKinsey, a lawyer in Sacramento and former nuclear power plant operator on submarines in the U.S. Navy, in “Regulating Avian Impacts under the Migratory Bird Treaty Act and Other Laws: the Wind Industry Collides with One of its Own, the Environmental Protection Movement,” 28 Energy L.J. 71 (2007) (pdf).

As McKinsey explains, his article “explores the complexity, and perhaps irony, of the avian impacts facing the wind industry.” The impact, current and potential, of wind turbines on birds (and bats) is not only “an awkward issue for the environmental protectors that promoted wind energy, but is also subject to a number of “federal laws . . . [that] have created a growing issue with no resolution in sight.” Thus, McKinsey believes, “[h]ow well the wind industry deals with avian impacts may determine the ability of the industry to continue its amazing success.”

Unfortunately, while there is a growing recognition that fatal collisions between birds and wind turbines seem inevitable, according to McKinsey, it is not “well understood how many birds or bats collide with wind turbines” and it is “[e]ven less understood how many birds or bats will collide with a future wind project that exists only on paper.” And until recently no one has even considered avian impacts in determining where to place wind farms. I’m no expert on wind farms, but I am a litigator trained to see risks where no one else does, and it never occurred to me in thinking about a wind farm in Lake Erie just off the Cleveland’s coast that such a facility might, as now seems plain, have a big effect on birds.

Thus, of course, we not only will have laws and political alignments we never expected, we will also have new jobs we never expected. It is only in the course of my professional career that the representation of waste management companies has become a major area of legal specialization. Now we have the beginnings of an “avian impact assessment industry,” as McKinsey explains:

Companies exist that are nearly exclusively studying avian impacts for wind projects. Businesses have started up solely to provide radar survey services for wind projects. Evaluating avian impact risk has become an accepted practice in developing wind energy projects. Such efforts can be very expensive, depending in part on what level of effort is required. In general, avian impact risk evaluation is people-intensive. The various activities all involve individuals watching, catching, and/or counting birds or inspecting the ground for clues as to what birds or bats might utilize the project location. Night time surveys are also costly. Radar surveys alone, must factor in the cost of radar equipment as well as the operator or operators.

And now the impact on birds, even if it is not yet accurately measurable, is beginning to have an effect on the design and placement of wind turbines. Some think “newer and larger wind turbines, with their slower more visible motions, might reduce collisions.” Studies suggest “using radar to steer off birds or placing lights at selected locations to avoid impacts.” But we’re still working largely in the dark. It’s been thought that the use of echo-location by bats would allow them to avoid impacts, but “[b]ats continue to puzzle researchers. Some projects have a very large bat kill whereas others have minimal bat kill.”

There are many federal laws on the books that could affect the wind industry precisely because of bird kills. The most important of them, according to McKinsey, is the Migratory Bird Treaty Act (MBTA), which was originally enacted in 1918 and provides that “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill . . . any migratory bird . . . .” The MBTA protects more than 800 species of birds. Intent to kill a bird is not required to violate the act, which imposes criminal penalties. Unknowing violations of the MBTA can receive fines up to $15,000 per violation and prison terms up to six months. Knowing violations are felonies and receive fines of $250,000 to $500,000 per violation and up to two years in prison.

Interestingly, though, McKinsey highlights the conflicts that can arise not only with respect to what the law is but with also with respect to how the law is enforced. He suggests that the MBTA’s potential impact is managed largely by “being ignored,” the approach the U.S. Fish and Wildlife Service adopted as official policy in 2003 in a policy memorandum euphemistically describing its approach as “selective enforcement.”

But the federal agencies that administer our regulatory system largely abandoned their jobs under the Bush administration. I have been unable to determine whether the Obama administration has reversed this policy in connection with enforcement of the MBTA, though it quite plainly has been called upon to do so. Already we’ve seen a shift away from “selective enforcement” of our laws governing workplace safety. But simply returning to strict enforcement of the MBTA might create conflicts no one considered before.

What seems plain, however, is that former allies in the environmental movement will be opposing one another on wind power projects. Altamount Pass, east of San Francisco, was developed as a wind farm in the early 1980′s. At the time, locating wind turbines was a function almost exclusively of wind availability. That can no longer be the case:

Altamont Pass, it turned out, while an excellent wind resource area, was also a challenging location to avoid avian impacts. Worse, this area of rolling hills was a primary hunting ground for large birds of prey, raptors. The end result was numerous dead raptors. Actual numbers have never been agreed upon by the various sides in the Altamont Pass confrontations, but a significant number of study efforts have taken place. Estimates often claim that more than 1000 eagles, hawks, and owls are killed each year.