Vanderbilt Law Review


J. B. Ruhl

First Page



What could be greener than wind power? That's easy-saving endangered species! The wind power industry has learned the hard way what timber companies, federal land management agencies, hydropower generators, state highway departments, real estate developers, small coastal villages, the Environmental Protection Agency, farmers, major metropolitan governments, and more like them around the nation know all too well-never, ever take your eyes off the Endangered Species Act ("ESA"). It may be green and one of the darlings of our nation's renewable energy future, but wind power has no "green pass" to get out of the ESA.

The reason wind power has cause for concern with the ESA is, in a nutshell, that wind power needs wind, and many bats and birds- including some protected under the ESA-like windy places. So, it is no wonder that wind power developers frequently find their choice facility locations in the path of protected species. This potential for bats, birds, and other species to collide with or otherwise feel harmful effects from wind power turbines necessarily implicates the ESA, as well as several other federal wildlife protection statutes. Only in the past few years, however, has wind power capacity across the landscape reached levels making the intersection of wind power and the ESA of critical importance to the nation's renewable energy policy.