Sky Pirates: Rule of Law is Blow’n In The Wind
by Joe Speelman on June 13, 2016 at 5:12 PM
The Legal Wilderness
Dedicated to Searching and Exploring our Legal Frontiers to Find, Categorize, and Tag the wild, Untamed and Predatory Applications of the Law
Rule of Law is Blow’n In The Wind
“…. I know he’d be a poorer man if he never saw an Eagle fly…”
Rocky Mountain High
By the late John Denver
During the Nixon Administration, Congress, the general public, and the Tennessee Valley Authority (TVA) were surprised and shocked to learn that a large river dam, 85% complete, would not be allowed to be finished because a scientist, sponsored in part by the nascent national environmental movement, had discovered that an endangered specie of fish, called a snail darter, would lose its only and last habitat if the dam were allowed to start operation. The dam was designed to promote the generation of clean, cheap, hydro-electric power, control flooding, and stimulate the regional economy. The US Supreme Court, citing the plain, simple language of the Endangered Species Act (ESA), and insisting up the “rule of law”, found against the TVA and prohibited the dam from starting up. The dam cost over $80 million, an astounding sum in those days.
Political heads prevailed so amendments to the ESA were rushed through Congress and the dam was eventually started. The environmental activists made “the snail darter case” a symbol of their movement. Rule of law had to be adhered to so they insisted. A short time after the above events, the scientist mentioned above acknowledged that he had found other snail darter habitats in the area that would have been unaffected by the TVA dam project. The “rule of law” had been reinforced by our legal system. The phrase “we are a nation of laws, not men” was given a strong reaffirmation and a clear meaning for going forward. Or so some thought.
In 1940 Congress passed and the President signed the Bald Eagle Protection Act. In 1962 that act was amended to add protection of golden eagles to the law. The Act prohibits the killing of golden or bald eagles in the US and has a stringent, clear and plain language prohibition on the “taking” (killing) of these two species. It is a felony punishable by prison time and up to $250,000 per incident ($500,000 for companies). The amended act allowed very limited permits for such “takings”. The law was lauded by conservation groups, including the Audubon Society, The American Bird Conservancy, and the Wildlife Society as well as various environmental groups. The permits, in federal regulations, allowed for the “accidental” taking of eagles. The US Fish and Wildlife Service, USFWS, is the Federal agency responsible for enforcing the Bald and Golden Eagle Protection Act. It also has the responsibility of enforcing the Endangered Species Act.
Beginning a few years ago, the USFWS has permitted the “unintentional” killing of Bald and Golden Eagles by companies that construct and operate wind turbines all across the US, especially in the southwestern, midwestern, and western states. These permits originally were for 5 years. How are they doing? Very poorly.
Wind farms, (groups of wind turbines), kill hundreds of thousands of birds, including Bald Eagles and Golden Eagles, hawks, raptors, and bats each month. The Wall Street Journal published an article pointing out that the USFWS recently pursued criminal charges against oil & gas energy production companies, including individuals, in North Dakota for accidently killing 6 ducks. This, while allowing over 1.5 million bird killings in 2012 by the wind turbine industry. When does “unintentional” become “intentional”, or even “planned”? Against the backdrop of a Federal statute specifically protecting the species, it is intentional when the party killing the species knows that its actions will cause the death of protected species. The rule of law requires that answer. Common sense requires that answer. Stewardship compels that answer.
How did the USFWS respond to this carnage? It proposed extending the permits in question from 5 years to 30 years. Expanding the permits is opposed by the American Bird Conservancy and the Wildlife Society which have filed litigation against the proposed permit extensions, and seeking an environmental impact assessment of the proposed regulations. What was the reason for the expanded regulations? The USFWS told a court, and some reporters the wind turbine industry needed the 30 year regulations to get financing for the wind farm constructions. When asked to disclose how many birds would be killed during the 30 year period, the wind turbine industry declined to answer, saying such information is a “trade secret”. Let me explain: using “trade secret” as a reason to not answer a valid question can mean only one of two things: either something very good (very unlikely or they would have disclosed it) or something very bad. Bingo! They know…..believe me, they know. Because they know, it has become “knowingly killing” Bald and Golden Eagles. Planning to kill these protected species. Knowing how many they will kill. Where is the Rule of Law? The rule of law, so important to the environmental movement in the snail darter case, has become something to be brushed aside by the environmental movement and the present Administration in their all out pursuit of “green energy”.
The common thread in the diametrically opposite actions by the USFWS in pursuing criminal charges against oil & gas companies for accidentally killing 6 ducks, while supporting the wind turbine industry in the knowing killing of millions of birds, including species specifically protected by the plain language of federal statute, is the blatant, lawless support of anything the wind turbine industry says it desires. This is the destruction of the Rule of Law, plain and simple.
Is wind turbine electricity even “green”? A number of very credible studies, according to Forbes Magazine, asserts that the actual costs of generating wind power is three times the cost of using natural gas to make the same amount of power. Furthermore, the “green” lobby fails to account at all for the enormous power used to manufacture the huge forged steel structures, all of which is generated by fossil fuel. When such facts are included in an intellectually honest evaluation, wind turbine energy is really a “blend” of fossil fuel and green energy. When added together, it becomes a sickening “brown” energy.
Add to the above analysis, the significant “line loss” of energy associated with the remote structures as well as the reliance upon inconsistent, strong winds and you get an expensive, unreliable, blended source energy that is far less efficient than clean natural gas, nuclear, or even clean coal-fired power generation. It is simply a “gimmick” environmentally when one considers the above; and it kills millions of birds, including species protected by the plain words in federal law. I only briefly mentioned that without the huge taxpayer funded energy tax credits, wind turbines would fail even the most “generous” economic cost evaluation. Many of the turbines are actually manufactured in China, using fossil fuels as only the Chinese can do. How is China doing on the environment these days?
As a native Kansan, I always enjoyed looking at the pristine western Kansas prairie grasslands while driving west on I-70. What I see now are over 50 visible wind turbines, looking like giant, post-apocalyptic scare crows, strung across the land as far as one can see. A boyhood friend of mine said it best, “It is like someone cut a jagged, obscene line across the face of the Mona Lisa with a knife.”
Attorneys and the legal profession, including judges, are responsible for ensuring the Rule of Law prevails in our country. The profession has failed its responsibilities in the above story. As well, we see complete disregard across many sectors of law in our country. Whether it be in immigration, environmental laws, laws requiring companies to assist criminal investigations into murderous terrorist attacks, mortgage-backed securities or many other examples, the legal profession has “found a way” for the plain, simple words of laws to be circumvented, ignored or even written out of existence. In so doing, rather than protecting the Rule of Law, the legal profession has become complicit and self-dealing in its demise. Whether it be in pursuit of pieces of silver or messianic support of social movements, too many attorneys have disregarded their responsibilities to the law. With growing disrespect of the profession, comes disrespect and disregard of the law. With that, “mere anarchy” is unleashed upon our world.
I return you to where we began:
“I am the eagle, I live in high country in rocky cathedrals that reach to the sky…
And all those who see me, and all who believe in me
Share in the freedom I feel when I fly….
Come dance with the west wind and touch on the mountain tops…
And reach for the heavens and hope for the future
And all that we can be, and not what we are.”
The Eagle and the Hawk, By John Denver
Who mourns the loss of Rule of Law? We all must do so.