Bird Conservation Groups File Lawsuit in Federal Court Over Icebreaker Wind Project

Precedent-setting project in Lake Erie must demonstrate that benefits outweigh risks

Media Contact: Jordan Rutter, ABC Director of Public Relations, 202-888-7472 | jerutter@abcbirds.org
Expert Contact: Joel Merriman, ABC Director of Bird-Smart Wind Energy, 202-888-7471 | jmerriman@abcbirds.org

Expert Contact: Kimberly Kaufman, Black Swamp Bird Observatory Executive Director, 419-898-4070 | kimkaufman@bsbo.org

Common Loons and many other bird species would be put at risk by Lake Erie's first offshore wind energy project, slated to be sited in one of the world's most important migratory corridors. Photo by Agnieszka Bacal/Shutterstock

(Washington, D.C., December 11, 2019) American Bird Conservancy (ABC) and Black Swamp Bird Observatory (BSBO) today filed suit in federal court against the U.S. Department of Energy and U.S. Army Corps of Engineers (Case 1:19-cv-03694). The suit focuses on the agencies' failure to comply with the National Environmental Policy Act (NEPA) and Clean Water Act, respectively, during their evaluation of environmental impacts and alternatives associated with the Icebreaker Wind project. Icebreaker would place a precedent-setting wind energy facility in Lake Erie, offshore of Cleveland, Ohio.

Constructing turbines in the proposed project site would pose substantial collision risks to the enormous numbers of birds that use the area throughout the year, including large concentrations of migrating songbirds, as well as Common Loons, globally significant populations of Red-breasted Mergansers, and other waterfowl. Further, construction and increased vessel traffic associated with the project could pollute the waters used by these species. Despite this, the agencies have failed to adequately evaluate environmental impacts and reasonable alternatives that would reduce the project's impacts.

“We regret that legal action is our only recourse,” said Mike Parr, ABC's President. “The agencies did not give this project the careful evaluation it requires under applicable environmental laws. In addition, American tax dollars are paying for more than a third of the project cost – but a Norwegian corporation is in partnership with the nonprofit project implementer, LEEDCo. Why are U.S. taxpayer dollars supporting this in the first place? Migratory birds are a common good of the American people,” Parr added. “The government has a duty to protect them more than international business interests.”

If approved, Icebreaker would be the first offshore wind facility in the Great Lakes and only the second in the United States. The site selected by the developer, the Central Basin of Lake Erie, is within a National Audubon Society-designated Global Important Bird Area that draws millions of birds annually. Radar studies conducted by the U.S. Fish and Wildlife Service (USFWS) have recorded large numbers of migratory birds and bats near Great Lakes shorelines, including Lake Erie's south shore. Many were flying at altitudes that would be within the rotor-swept area of wind turbines, making these birds susceptible to collision-related deaths, injuries, and disturbances.

The Kirtland's Warbler is one such species. After more than 50 years on the endangered species list, this species has just been delisted and added to the list of successes under the Endangered Species Act. “Many agencies, NGOs, and other partners have worked for decades to see the Kirtland's Warbler recover from the brink of extinction,” said Joel Merriman, Director of ABC's Bird-Smart Wind Energy campaign. “We have no wish to see this undermined by an inadequately vetted energy project.”

Despite serious concerns regarding the risk of wind turbine-caused mortality and other impacts on birds, the Icebreaker proposal has moved forward over the last decade. Among other shortcomings, this precedent-setting project should have been evaluated through a comprehensive environmental impact statement (EIS) to comply with NEPA. USFWS — the agency with statutory jurisdiction and scientific expertise over U.S. bird populations — recommended that an EIS be developed, but was ignored.

“Existing data from the Ohio Department of Natural Resources shows that this area is important for huge numbers of birds,” said Kimberly Kaufman, Executive Director of BSBO. “The inadequate science provided by the applicant understates the risk. This highlights the importance of conducting a more comprehensive assessment of environmental impacts.”

Further, Icebreaker is a demonstration project. Its review and approval will be considered the benchmark for hundreds, possibly thousands, of additional turbines expected to be proposed for the Great Lakes over the coming decades. A robust cumulative impact assessment is needed to evaluate likely impacts of this larger scale of development. This would follow a similar requirement recently set for offshore wind facilities along the Eastern Seaboard.

“We need renewable energy development to combat the effects of climate change, but it needs to be done right,” said Merriman. “We must ensure that we're not creating new problems in the process by building turbines in high-risk areas for birds. This precedent-setting project needs to take the proper steps to demonstrate that the benefits outweigh the risks.”

The complaint seeks to require that the U.S. Department of Energy complete an EIS and comprehensive cumulative impacts assessment, and that both agencies complete a legally adequate alternatives analysis.

“Data published in September showed that North America has already lost around 29 percent of its bird population,” said Parr. “This project is an example of how birds are routinely ignored when business decisions are involved. Since birds are a public good, and taxpayer dollars are involved in benefiting a private company in this case, the agencies should be doing a much better job here.”

American Bird Conservancy and Black Swamp Bird Observatory are being represented by the public interest environmental law firm Eubanks & Associates, LLC.

ABC thanks the Leon Levy Foundation for its support of ABC's Bird-Smart Wind Energy Program.

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American Bird Conservancy is a nonprofit organization dedicated to conserving birds and their habitats throughout the Americas. With an emphasis on achieving results and working in partnership, we take on the greatest problems facing birds today, innovating and building on rapid advancements in science to halt extinctions, protect habitats, eliminate threats, and build capacity for bird conservation. Find us on abcbirds.org, Facebook, Instagram, and Twitter (@ABCbirds).

Black Swamp Bird Observatory is a 501(c)(3) not-for-profit whose mission is to inspire the appreciation, enjoyment, and conservation of birds and their habitats through research, education, and outreach.

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