Sustainable Development Arrested by U.S. Criminal Law

Sustainable Development Arrested by U.S. Criminal Law

68 Am. U. L. Rev. 2145 (2019).

* Professor of Law, Suffolk University Law School; J.D., University of California at Berkeley; M.A., Regional Energy Planning, University of California at Berkeley; B.A., Economics, Pomona College.  Previously, Visiting Professor, Harvard Law School.  Since 1993, Professor Ferrey has served as a primary legal consultant to the World Bank, the European Union, and the United Nations on their renewable energy and climate change reduction policies for developing countries, where he has worked extensively in Asia, Africa, and Latin America. He was a post-doctoral Fulbright Fellow at the University of London between his graduate degrees.  He is the author of 100 articles and seven books on energy and environmental law, the most recent of which are Unlocking The Global Warming Toolbox (2010); Environmental Law (8th ed. 2019); and The Law of Independent Power (48th ed. 2019).

In the United States, it is a criminal felony offense for killing, even unintentionally, any one of more than 1000 species of protected birds.  If a perpetrator company violates this law, officials of the company can be sent to jail for up to two years and be fined up to one-quarter million dollars per bird killed.  Over the past decade, wind power has grown to be the most-installed energy source in the United States and will hold that top position going forward.  Wind power in the United States now kills an estimated several hundred thousand of these birds that are protected by strict federal criminal statutes every year.  As wind power’s small three percent share of the energy market multiplies rapidly in the next decades, and as the United States moves to renewable energy as the keystone of its mobilization against climate change and global warming, this bird mortality number likely will increase commensurately.

This Article examines several emerging legal conflicts between mitigation of global warming and criminal prosecution of sustainable energy development through three federal species protection statutes and an international treaty.  Wind turbines indisputably are one of the premier technologies providing the world a chance to mitigate global climate change before there are irreversible, dire effects on the world environment, which could include bird mortality.  This Article contrasts the significant change in executive branch policies between the Obama and Trump administrations, now increasing the number of felony statute bird disputes under U.S. law.

Despite the significant number of bird mortalities linked to operating wind turbines, as of this publication, there is no court decision ever construing prosecution of, or criminal penalties applied to, any wind turbine operation that kills protected bird species.  Some U.S. Senators have accused the executive branch of a lack of equal enforcement of the laws.  Sustainable energy law now confronts criminal law in a case of legal first impression.  This Article analyzes, in detail, analogous court decisions applied to other technologies creating an uneven legal foundation on which wind turbines are built. This Article analyzes conflicting case law regarding the mens rea requirement for criminal felonies in the deployment of sustainable energy development, original congressional intent construed in the courts, and recentcourt decisions restricting executive branch discretion in such environmental matters.  It concludes by comparing the relative risk of different technologies to our environment, in the context of the current climate change responseimperative and the role of courts to resolve these conflicts now of first impression.