Federal Court Holds That the Migratory Bird Treaty Act Does Not Apply to Lawful Activities That Result in the Incidental Taking of Protected Birds
A legal update from our colleagues Per Ramfjord and Steve Galloway:
In a recent opinion, the United States District Court for the District of North Dakota dismissed misdemeanor criminal charges against three oil and gas companies for violation of the Migratory Bird Treaty Act (“MBTA”) arising out of the incidental death of migratory birds through contact with oil reserve pits operated by the defendants. United States v. Brigham Oil & Gas, L.P., No. 4:11-po-005-DLH et al., 2012 U.S. Dist. LEXIS 5774 (D.N.D. Jan. 17, 2012). This opinion is significant because it represents the latest in a number of cases that have interpreted the MBTA in a manner that does not criminalize the inadvertent taking of migratory birds.
By way of background, the MBTA was enacted in 1918 to implement four international treaties aimed at protecting migratory birds. The Act makes it unlawful “by any means or in any manner” to “take” or attempt to “take” any of approximately 800 species of migratory birds, including most common birds other than pigeons and starlings. Regulations promulgated under the Act further define the term “take” as to “pursue, hunt, shoot, wound, kill, trap, capture, or collect” any such birds. Companies or individuals who violate these provisions face misdemeanor criminal penalties that can result in fines of up to $15,000 per bird and/or six months’ imprisonment.
California Energy Commission Issues 2011 Integrated Energy Policy Report
Yesterday, the California Energy Commission (CEC) issued a notice that, as part of the CEC’s February 8, 2012 Business Meeting, the Commission will consider adoption of the Lead Commissioner’s Final 2011 Integrated Energy Policy Report (IEPR).
The CEC’s notice included the following information:
Background
Senate Bill 1389 requires the CEC to adopt an integrated energy policy report every two years. The objective of the IEPR is to evaluate market trends and develop energy policies that will "conserve resources, protect the environment, ensure energy reliability, enhance the state's economy, and protect public health and safety." The Final 2011 IEPR has been prepared in response to this direction and is available on the CEC’s website.
To prepare the report, the Energy Commission conducted 30 public workshops on a range of issues facing California's electricity, natural gas, and transportation fuel sectors. On December 5, 2011, the Energy Commission released the Draft 2011 IEPR to solicit public comments. The Final 2011 IEPR considers all written comments on the draft report.
Written Comments
The Energy Commission will accept comments on the Final 2011 IEPR and requests parties to submit comments in writing by February 1, 2012, so that comments can be considered before the February 8, 2012, Business Meeting. Comments will also be accepted at the Business Meeting.
Verdant Power Receives First FERC Pilot Project License
Today, the Federal Energy Regulatory Commission ("FERC") issued its first pilot project license for a tidal energy project to Verdant Power, LLC for its Roosevelt Island Tidal Energy ("RITE") Project in New York's East River (pictured at right). As a first-of-its-kind license, this is a significant step for the burgeoning tidal energy industry in the United States.
According to the license, the project will be construted in three phases over a five year period. When complete, the project will consist of thirty 35-kW, 5-meter-diameter axial flow Kinetic Hydropower System ("KHPS") turbines with a total installed nameplate capacity of 1.05 MW. Verdant must begin construction on Phase 1 within the next two years and must complete Phase 3 within six years. The license was issued for the full 10 years requested in Verdant's license application.
Although the levelized cost of energy for the RITE project is high relative to other energy sources, the Commission stated clearly that "[t]his project's value . . . lies in its successful testing and demonstration of Verdant's KHPS turbine technology, and the project's ability to raise the profile of, and advance, the emergent tidal energy industry."
The license can be found on FERC's website under Docket No. P-12611-005.
For more detailed information on the FERC pilot project licensing process, see Chapter 3 of our recently updated Law of Marine and Hydrokinetic Energy.
Upcoming Energy Conference Highlights
Through industry presentations and publications as well as through our blog, our energy attorneys are dedicated to helping you stay informed and knowledgeable about legal developments that affect your business.
Visit our website for the latest calendar of events. Upcoming highlights include:
PV Due Diligence Requirements
January 23-26 – San Diego, CA
This conference will focus on the core areas of due diligence for PV projects—mostly utility-scale, but also distributed-scale—and provide a "blueprint" for their execution. It covers aspects of solar project development not tackled by instructional programs, which focus strictly on financing issues. On January 23, Stoel Rives attorney, Howard Susman will present, "Project Contractual Relationships."
Next Generation Bio-Based Chemicals Summit
January 23-26 – Phoenix, AZ
This summit is focused on sustainably sourced chemicals — and the platforms, resources, business models and tools required to deliver them. Sam Webb will moderate the Plant/Biomass Panel Discussion, CJ Voss will moderate the Plenary Keynote Session, Consumer Goods Brand Owner/Automotive OEM Panel, and David Quinby will serve as Summit Chair. Stoel Rives is proud to be the Platinum Sponsor of this event.
EUEC 2012
January 30-February 1 – Phoenix, AZ
Over 2,000 delegates including environmental business leaders, energy executives and government policymakers gather to share presentations and discuss alternate energy solutions to secure our independence from foreign oil while protecting our environment. Kristen Castaños will present, "Utility-Scale Solar Projects in California - The Keys to Development Permits in Desert Areas and on Farmland," and Allison Smith will present, "Strategies for Complying with Current GHG Regulations in California."
Municipal Solid Waste to Biofuels Summit
February 7-8 – Chicago, IL
Stoel Rives attorney Kevin Johnson is headed to the Windy City for this forum, designed specifically to facilitate business meetings with investors, biofuels developers, waste management executives, and local and state officials. Hear Kevin Johnson present “The Legal Perspective: Counseling Municipalities in Renewable Energy Strategy.”
Wind Power Finance & Investment Summit
February 8-10 – San Diego, CA
Join Stoel Rives attorneys Ed Einowski, Duff Bryant, Greg Jenner, Howard Susman and Alexandra Mertens at one of the best deal-making and networking events in the wind industry. This annual summit brings together leading project developers, lenders, investors, financiers and other key players to discuss the latest finance and investment developments, and share information about upcoming projects opportunities. Stoel Rives is a proud Platinum Sponsor of this event. Stoel Rives is pleased to offer a 15% registration discount with code 120131.
2012 Wind, Solar and Storage
February 14-16 – Austin, TX
Stoel Rives Partners Bill Holmes and Greg Jenner will serve as members of the esteemed faculty for this CLE program, presented by the University of Texas School of Law and the Oil, Gas and Energy Resources Law Section of the Texas State Bar. Greg Jenner will moderate the discussion panel, “A Primer on Economics, Tax Credits and PPAs for Wind and Solar Projects.” Bill Holmes will moderate the discussion panel, “Integration, Reliability, Operational and regulatory Issues for Renewables.”
Utah Energy Development Summit
February 15 – Salt Lake City, UT
Join Stoel Rives attorney Julia Pettit for the premier energy event for Utah and the Greater Rocky Mountain area. With a speech from Utah Governor Gary Herbert highlighting energy priorities in his administration, as well as keynotes from national-level energy leaders, this will be an event not to miss. Stoel Rives is a proud sponsor of this event.
National Ethanol Conference
February 22-24 – Orlando, FL
Stoel Rives is proud to be a sponsor for this conference delivering timely information on marketing, legislative and regulatory issues facing the ethanol industry. With numerous networking opportunities, more business meetings are conducted and contacts made at this conference than any other ethanol conference. Stoel Rives attorneys Graham Noyes and Kevin Prohaska will be in attendance.
Solar Power Finance & Investment Summit
February 27-March 1 – San Diego, CA
This summit brings together utility-scale, commercial and residential solar project developers, investors, lenders, equipment suppliers, construction contractors and other key players to share their perspectives on the latest developments in the solar project finance and investment market. David Benson will Chair the Solar Power Executive Briefing. Julia Pettit will moderate, "The Buying and Selling of Distributed Solar Projects,” and Morten Lund will moderate, "Financing 2-20 MW Scale Projects.” Stoel Rives attorneys Greg Jenner and Howard Susman and Ed Einowski will also be in attendance. Stoel Rives is a Platinum Sponsor at this event. Stoel Rives is pleased to offer a 15% registration discount with code 120221.
AWEA Wind Power Project Siting Workshop
February 28-March 1 – Las Vegas, NV
This two-day siting seminar delves into key siting topics and explores issues related to wildlife interactions, sound and visual impacts, radar issues, cultural resources and stakeholder interests. Stoel Rives attorneys Aaron Courtney and Tim McMahan both members of AWEA’s Siting Committee, will be in attendance, and Aaron Courtney present, “Managing Regulatory Risk on Your Site.
