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.

I. Crimes in the Wind

Killing any one of more than 1000 species of protected birds is a criminal felony offense in the United States that can send officials of the perpetrator company to jail for up to two years and impose a fine up to a quarter million dollars per dead bird. Wind power rapidly ascended as the now most-deployed energy source in the United States during the past decade and will hold the top position going forward.1U.S. Dep’t of Energy, 2011 Wind Technologies Market Report 3–4, 6 (2012), https://www.nrel.gov/docs/fy12osti [https://perma.cc/EL9E-YTF8]. Yet, wind power in the United States kills several hundred-thousand of these treaty-protected birds every year. Sustainable energy development can trigger criminal law liability. “Sustainable energy” and “criminal law” violations aren’t normally mentioned in the same sentence. New wind technology now must navigate legally uncharted and conflicted territory at a time when recent Supreme Court decisions are restricting executive branch discretion.

This Article breaks new legal ground analyzing the direct legal confrontation between three federal criminal species protection statutes in U.S. law and an international treaty, with new sustainable wind technology killing an estimated several hundred thousand federally protected birds annually.2Threats to Birds, U.S. Fish & Wildlife Serv., https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php [https://perma.cc/7LCG-DA9M]. A significant change between the Obama and Trump administrations’ legal practices creates additional friction regarding this legal question of first impression on felony conduct. Existing principles of constitutional separation of powers and Chevron3Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). deference in recent opinions are being restricted and reshaped by the Supreme Court. This Article critically examinesrelevant precedent regarding the mens rea requirement for criminal felonies in the deployment of sustainable energy development and congressional intent. In addition, it discusses recent Supreme Court decisions restricting executive agency discretion and potential defenses of first impression to criminal prosecution.

Three federal bird protection statutes—the Migratory Bird Treaty Act (“MBTA”),416 U.S.C. §§ 703–712 (2012). the Endangered Species Act (“ESA”),516 U.S.C. § 1532(1)–(21). and the Bald and Golden Eagle Protection Act (“BGEPA”)616 U.S.C. §§ 668, 668a–c.—protect more than 1000 bird species and mammals, delegating to federal agencies the authority to criminally prosecute individuals and corporations that “take” or kill a single protected bird. The penalties for a misdemeanor under the MBTA extend to up to six months imprisonment and a $15,000 fine for each violation,716 U.S.C. § 707(a)–(b). and for a felony violation, impose a penalty of up to two years imprisonment and a $250,000 fine.818 U.S.C. § 3571(b); Federal Laws that Protect Bald Eagles, U.S. Fish & Wildlife Serv. Midwest Region, https://www.fws.gov/midwest/eagle/protect/laws.html [https://perma.cc/EY3E-ZUBC] (last updated Mar. 4, 2019). Penalties under the BGEPA include two years imprisonment and a $10,000 fine, with sanctions doubled where the violator is an organization or company.916 U.S.C. § 668(a); Federal Laws that Protect Bald Eagles, supra note 8. The oldest of these statutes is an international treaty to which the United States has been a party for a century.1016 U.S.C. § 703. With an estimated several hundred thousand protected birds killed by wind turbines annually in the United States,11The 2017 bird mortality rate due to wind turbine collisions ranges from a minimum of 140,438 to a maximum of 327,586 with a median estimate of 234,012 birds killed annually. Threats to Birds, supra note 2. each killing, unless legally excused, includes the possibility of jail time for project owners.1216 U.S.C. §§ 668, 668a–c, 703–712, 1532(1)–(21).

Sustainable energy, criminal law; direct legal conflict, legal first impression. This unresolved legal conflict implicates the separation of powers and a long-established foundation of American law: the Chevron doctrine of executive branch court deference. This Article analyzes the law, as it has been compelled to adapt to new sustainable technology and the evolving science surrounding climate change and sustainable power; I develop criminal law defenses for wind project development.

Section II examines the transformation of wind technology as a sustainable power source. It explores the science and engineering principles for harnessing wind power to generate renewable electricity, the rapidly increasing importance of electricity in the American economy, and wind power as a fulcrum to leverage coherent policy responses to accelerating climate change. Section II also analyzes the shifting base of effective legal regulation, as one quarter of U.S. states deregulated their retail power sectors. New, lower-cost, independent, sustainable non-utility power projects now are the norm, eclipsing new utility power generation projects.13See infra Section II.A.2. Section II further examines in detail exactly how modern wind turbines increase avian and mammal mortality and mitigation.

Section III dissects and analyzes each of the three critical U.S. laws that protect birds and mammals from harm or death by imposing criminal penalties, jail time, and large fines: The MBTA,1416 U.S.C. §§ 703–712. the ESA,15§ 1532(1)–(21). the BGEPA.16§§ 668, 668a–c. While there are important legal distinctions among these statutes, collectively, they create strict liability felony crimes where a wind turbine operator kills, even unintentionally and indirectly, almost anything that flies.

Section IV analyzes, from both legal and policy perspectives, how these strict liability criminal statutes are being applied to burgeoning wind power development by:

  • Comparing wind turbine bird mortality to other causes of bird mortality;
  • Contrasting Congress’s original legislative intent with agency prosecutorial discretion;
  • Charting exemptions from prosecution and Equal Protection concerns;
  • Analyzing who has standing to initiate suit and whether there is a private right of action;
  • Determining whether the prosecution must prove mens rea17See infra Section IV.B.1. for these criminal felonies; and
  • Examining court decisions involving other analogous activities that kill birds.

The federal government issued a new set of government guidelines, which potentially provide a legal “safe harbor” for wind project developers and operators, analyzed in Section IV. This Article concludes by setting forth legal defenses of wind turbine developers and operators to criminal liability when bird mortality unintentionally results, as now occurs approximately several hundred thousand times annually.18Threats to Birds, supra note 2 (estimating that there is a median of 328,000 birds killed annually). Next, we turn to how the law is adapting to changing power technology.

II. Human Evolution, Power, Legal Regulation

A. Power, Technology, and Law Evolve

New technology, new power, new conflict. New zero-carbon emission renewable energy technology is the key technology whose implementation can effectively address and mitigate rapid climate change.19See infra Section II.A.3. However, this new technology’s operation conflicts with requirements of a century of existing U.S. law protecting endangered and migratory animals. How will U.S. law address and resolve this current legal conflict as to new technology and law?

Electric energy is the fundamental technology essential to power the developed twenty-first century America20Michael Bruch et al., Power Blackout Risks: Risk Management Options 4 (Markus Aichinger ed., 2011), https://www.thecroforum.org/wp-content/uploads/2012/09/CRO-Position-Paper-Power-Blackout-Risks-1-1.pdf [https://perma.cc/9SPM-ZPHG]. and the foundation of the modern economy.21Steven Ferrey, Environmental Law: Examples & Explanations 580–81 (7th ed. 2016). Electric power has a delivered value in the United States of approximately $390 billion annually,22Revenue of the Electric Power Industry in the United States from 1970 to 2017, Statista (June 7, 2019), https://www.statista.com/statistics/190548 [https://perma.cc/Q9VY-6AES] (showing $390.34 billion in utility power sale revenue in 2017). The average delivered price in 2011 of all electricity nationwide was $0.0966/kilowatt hour (Kwh) and $0.1102/Kwh for residential customers. See Average Retail Price of Electricity to Ultimate Customers by End-Use Sector, by State, Year-to-Date through February 2011 and 2010, Pub. Pol’y Inst. of N.Y. State, Inc., http://ppinys.org/reports/jtf/2011/employ/average-retail-price-of-electricity2010-11.htm [https://perma.cc/5WM4-S6DR]. exceeding the total amount of corporate income taxes collected in the United States, even before the corporate tax rate was dramatically reduced in 2018.23Historical Amount of Revenue by Source, Tax Pol’y Ctr., https://www.taxpolicycenter.org/statistics/amount-revenue-source [https://perma.cc/W7VJ-6SF2]. Engineers named the transmission network as the twentieth century’s most critical engineering accomplishment. The law tightly controls its operation.

According to a list summarizing humanity’s greatest inventions,24James Fallows, The Fifty Greatest Breakthroughs Since the Wheel, Atlantic Monthly, Nov. 2013, at 56, 64 (arguing that only the moving-type printing press ranked as more important, and further adding that the movable-type printing press is now significantly replaced by electronic media for print). Electricity is the signature technology of modern civilization. Id. at 58. the second most important invention in human history is electric power, which was harnessed for the first time less than 150 years ago.25Steven Ferrey, Law of Independent Power § 2:2 (48th ed. 2019). Many modern inventions utilize electricity and have no substitutes to operate in any other modes. Electricity is essential to operate seven other “top fifty” inventions of alltime: the Internet, computers, air-conditioning, radios, televisions, telephones, and semiconductors. See Fallows, supra note 24, at 68. Placing this in historical perspective, the Earth itself has existed for an estimated 4.5 billion years, and the use of mammals for power as draft animals only appeared a few thousand years ago.26Vaclav Smil, Energies: An Illustrated Guide to the Biosphere and Civilization 105 (1999); see also C. Stuart Hardwick, How Do We Know the Earth is 4.5 Billion Years Old?, Forbes (Feb. 7. 2017), https://www.forbes.com/sites/quora /2017/02/07/how-do-we-know-the-earth-is-4-5-billion-years-old [https://perma.cc/P2NK-23KW]. Land plants appeared 475 million years ago, and mammals appeared 200 million years ago. The 25 Biggest Turning Points in Earth’s History, BBC, http://www.bbc.com/earth/bespoke/story/20150123-earths-25-biggest-turning-points [https://perma.cc/C5B3-QW7N]. Humans have existed for only 200,000 years of the Earth’s history. Id. The rise of early civilizations was related to the domestication of cattle, oxen, and water buffalo, which made it possible to cultivate fields with primitive plows. Smil, supra, at 108–09. When cattle and horses were ultimately harnessed to plows, they provided the ability to do deep plowing in heavier soils as well as threshing, oil extraction, and lifting groundwater for agricultural irrigation and drinking. Id. at 110. Energy, as a means of magnifying human efficiency within the environment, was only discovered and used in the last few thousand years of the approximate 200,000 years that human beings and their predecessor species are estimated to have been on the Earth.27The 25 Biggest Turning Points in Earth’s History, supra note 26; see also Andrew C. Scott, When Did Humans Discover Fire? The Answer Depends on What You Mean By ‘Discover’, Time (June 1, 2018), https://time.com/5295907/discover-fire [https:// perma.cc/WR3B-ND47] (explaining that humans only learned to harness fire about 7000 thousand years ago). Windmills were invented late in pre-industrial society, never supplanting human labor as the primary energy source, and originally made “marginal contributions” to mechanical energy for pressing, grinding, and milling.28See Smil, supra note 26, at 105–06.

Advancing beyond basic burning of wood and early use of wind power, the use of fossil fuels for energy has existed only for the most recent 200 years or less.29Id. at 117–25, 133. The efficiency of the burning of these fuels was comparatively quite low. Id. at 118. Charcoal was the preferred fuel for smelting and processing metals, primarily steel, iron, and copper, because of its relatively high energy density. Id. Wood will not ignite when it has more than 67% moisture content and burns inefficiently when the moisture level is above 40%; even air-dried wood contains about 15% moisture. Id. Charcoal contains only trace amounts of moisture; its energy density is comparable to that of high-quality coal, composed of virtually pure carbon; and it is able to achieve very high temperatures in a smokeless manner. Id. Therefore, it can be used for firing bricks, tiles, and lime, as well as for smelting metals. Id. While charcoal was capable of greater energy density and higher temperatures, the production of charcoal in primitive kilns was only about 15–25% of the energy content of the wood used to make the charcoal. Id. Thus, as a derived form of energy, it shares similarities with electricity, which typically is derived from fossil, renewable, or nuclear power, with a significant loss of efficiency under the second law of thermodynamics. Fossil fuels are directly linked as a causative factor in rapid climate change.30The Causes of Climate Change, NASA, https://climate.nasa.gov/causes [https://perma.cc/PT64-P3RE]. The amount of global warming anthropogenic carbon dioxide (CO2) emitted to the atmosphere has corresponded directly with the combustion of those fossil fuels.31Id. Energy use is also a function of recent population increase.32David Funkhouser, Population, Consumption and the Future, Columbia Univ. Earth Inst.: State of the Planet (Apr. 27, 2012), https://blogs.ei.columbia.edu/ 2012/04/27/population-consumption-and-the-future [https://perma.cc/3C6B-RKVA].

As to time: If human history were stretched along one mile, energy capture would only occur in the final one foot of this mile. In the final two inches of these 5280 feet, energy prime movers were invented to exploit the chemical energy in fossil fuels to produce steam for heating, transportation, and other industrial tasks. These inventions created the industrial age that quickly displaced the medieval windmill, which had first powered the final six inches of our mile-long human history.33See Smil, supra note 26, at 105–06. Only in the final inch were oil and electricity harnessed.34Id. Now, in the final fraction of an inch of this human history, this Article analyzes the current climate change-regulatory-renewable energy multi-level transition in fundamental power technology, governed by law.

1. Climate change; more renewable power

In the first technology transition, there was a relatively rapid transition to renewable energy in lieu of conventional coal-fired power. Much of this shift was augmented by significant concerns about climate change. After hundreds of years of significantly lower greenhouse gas (“GHG”) levels, they now have increased to more than 400 ppm and are climbing rapidly.35See Global Carbon Dioxide Growth in 2018 Reached 4th Highest on Record, Nat’l Oceanic & Atmospheric Admin., https://www.noaa.gov/news/global-carbon-dioxide-growth-in-2018-reached-4th-highest-on-record [https://perma.cc/VQP9-7CST]; Pieter Tans & Ralph Keeling, Trends in Atmospheric Carbon Dioxide, Nat’l Oceanic & Atmospheric Admin., http://www.esrl.noaa.gov/gmd/ccgg/trends [https://perma .cc/2ZWA-F6FG]. And the earth is warming and sea level is rising.36Climate and Energy: Climate Calamity?, WWF, http://wwf.panda.org/our_work /climate_and_energy[https://perma.cc/6JJH-WMJ2]. The United Nations International Panel on Climate Change 2014 report concludes that, in order to maintain world warming below an additional 2°C, there must be a 40–70% reduction of GHG emissions from 2010 levels by no later than 2050.37Intergovernmental Panel on Climate Change, Climate Change 2014 Synthesis Report 20 (Rajendra K. Pachauri et al. eds., 2014), https://reliefweb.int/report/world/climate-change-2014-synthesis-report [https://perma.cc/84FZ-GU5F].

The Congressional Research Service concluded that during 2010, 78% of U.S. primary energy production could be attributed to fossil fuel sources.38Molly F. Sherlock, Cong. Research Serv., R41953, Energy Tax Incentives: Measuring Value Across Different Types of Energy Resources 3 (2012), https://www.hsdl.org/?view&did=722543 [https://perma.cc/ZAX9-FN29]. Until the last handful of years, the U.S. electric system relied primarily on coal-fired technology resources: 406 U.S. coal-fired power plants produced about 95% of the coal-fired power in the United States, accounting for approximately half of total U.S. electricity production in 2009, which has diminished to less than one-third of electric power now.39See What Cost Energy? What Market Prices Fail to Reveal, 22 Electricity J. 3, 3 (2009). In 2017, coal provided 27.2% of our nation’s electricity, while natural gas use had increased dramatically to supply 34.9%.40Industry Data, Edison Electric Inst., http://www.eei.org/resourcesandmedia/industrydataanalysis/industrydata/Pages/default.aspx [https://perma.cc/T6SV-NLRR]. Natural gas supplied 34.0%, nuclear energy produced 19.2%, hydropower provided 6.9%, and other renewable resources, such as geothermal, solar, and wind, provided 10.7% of electric power. Id. With carbon dioxide constituting 82% of all GHG emissions in the United States, the electric sector of the economy’s exceeding transportation, agriculture, industrial, and commercial and residential sectors of the economy in its emission of GHGs, climate change is primarily a power sector issue.

2. Transition to independent wholesale power

In the second regulatory level, during the past twenty years, sixteen states deregulated retail sale of power in their states.41Map of Deregulated Energy States & Markets (Updated 2018), Electric Choice (2018), https://www.electricchoice.com/map-deregulated-energy-markets [https:// perma.cc/T89V-9VNW]. Several of these states, in order to spur competition, have excluded their regulated utilities from generation of power, having them divest their power generation assets and transition to purchasing their power wholesale from independent producers.42Steven Ferrey, The New Rules: A Guide to Electric Market Regulation 238–39 (2000). In a significant number of these sixteen deregulated states, this resulted in the regulated monopoly utilities selling their power generation units to independent power companies.43See U.S. Dep’t of Energy, Energy Info. Admin., The Changing Structure of the Electric Power Industry 2000: An Update 106 (2000).

Figure 1.44Map of Deregulated Energy Market (Updated 2018), supra note 41. State Utility Deregulation