On June 20, 1782, the Continental Congress, after nearly six years of haggling and numerous design changes, finally approved the Great Seal of the United States. In doing so, it made the bald eagle our national symbol. This year, in the name of clean energy, the Fish and Wildlife Service is considering changing federal rules so that a wind-energy developer can be granted an "incidental-take" permit allowing wind projects to kill bald eagles and golden eagles for up to 30 years.
On Jan. 15, the Fish and Wildlife Service determined that the New Era Wind Farm—a proposed project near Red Wing, Minn.—might kill as many as 14 bald eagles per year. Despite that toll, the agency said the developer of the 48-turbine wind farm could go ahead and apply for an eagle-kill permit. If granted, it could be the first project to get one. At least one other wind-energy concern, Oregon's West Butte Wind Project, also has applied for an incidental-take permit, and others are sure to follow.
The Fish and Wildlife Service said that its estimate for bald eagle kills at the New Era facility was a "worst-case scenario" that "would not damage" the local population of bald eagles. That might be true. Nevertheless, the possibility that federal authorities are willing to issue such a permit once again exposes the double standard at work when it comes to renewable energy.
For years, the wind industry has had de facto permission to violate both the Migratory Bird Treaty Act (which protects 1,000 species) and the Bald and Golden Eagle Protection Act. Federal authorities have never brought a case under either law—despite the Fish and Wildlife Service's estimate that domestic turbines kill some 440,000 birds per year.
While the wind industry enjoys its exemption from prosecution under these federal wildlife laws, the Interior Department has aggressively brought cases against the oil-and-gas industry. In 2011, the Fish and Wildlife Service filed criminal indictments against three drillers who were operating in North Dakota's Bakken field. One of those companies, Continental Resources, was indicted for killing a single bird (a Say's Phoebe) that is protected by the Migratory Bird Treaty Act. This law was adopted in 1918, at a time when several bird species were being decimated by hunters.
Compare the action taken against Continental Resources with the Pine Tree wind project, a three-year-old facility owned by the Los Angeles Department of Water and Power. Since 2009, nine golden eagle carcasses have been recovered at the project and reported to the Fish and Wildlife Service. Los Angeles Times reporter Louis Sahagun reported on Feb. 16, 2012, that at least six of the birds had been struck by turbine blades. Yet there have been no indictments. Jill Birchell, special agent in charge of law enforcement for the Fish and Wildlife Service in California and Nevada refused to comment on the Pine Tree case, other than to tell me that "it is an ongoing criminal investigation."
Federal law has protected the bald eagle since 1940, the golden eagle since 1962. Violating the Eagle Protection Act can result in a fine of $250,000 and imprisonment for two years. From 1976 to 2007, the bald eagle also was protected under the Endangered Species Act. It got off the federal endangered-species list—among only a handful of animals ever to do so—thanks to decades of conservation efforts, including captive-breeding projects, some of which were sponsored by the Fish and Wildlife Service. Today, there are about 10,000 breeding pairs of bald eagles in the lower 48 states. But they are still protected by both the Eagle and Migratory Bird acts.
Getting a permit to kill eagles has always been difficult. Indian tribes are allowed to obtain eagle feathers for religious purposes. In addition, some scientific and educational entities can be permitted to possess eagle parts.
The wind-energy lobby has sought such permission for years, insisting that eagle-kill permits ought to last longer than the current limit of five years. Last April the Fish and Wildlife Service agreed, and it published a Federal Register notice saying it planned to extend incidental-take permits to 30 years so as to "facilitate the responsible development of renewable energy."
Although the agency hasn't made a final ruling on the 30-year permit, the proposal has riled environmental groups and several Native American tribes. The Natural Resources Defense Council, the Defenders of Wildlife, the National Audubon Society, the Sierra Club and the Wilderness Society submitted a joint statement to the Fish and Wildlife Service saying that the 30-year term was too long and that there was a "lack of sufficient baseline population data" on the two eagle species.
An eagle-kill permit "infuriates me," says Daniel Stussy, who owns a 20-acre farm on the border of the proposed New Era Wind Farm in Minnesota. "As a hunter, if I mistook the bald eagle for a Canada goose, a big fine would be the least of my worries. I couldn't even go to town for coffee because I'd be so ashamed."
Kelly Fuller of the American Bird Conservancy has a stronger warning: "If you want to turn the public against the wind industry, building a project that kills a lot of bald eagles will do it."
Mr. Bryce is a senior fellow at the Manhattan Institute and the author of "Power Hungry: The Myths of 'Green' Energy and the Real Fuels of the Future" (PublicAffairs, 2010).