The Impact of Wind Farm on Birds: Analyzing India’s International Obligations.

Introduction
On 8 February 2021, a petition has been filed in the Maduri Bench of the Madras High Court
that sought directions to study the impacts of wind turbines on the migratory birds. It primarily
aims to direct the states and the center to conduct a study in order to evaluate the aftermath of
turbines on the migratory birds and other species.
Indian Context
India possesses the fourth largest capacity of wind power, and plans to increase it further for
which the National Offshore Wind Energy Policy has also been notified by the Government.
Therefore, it becomes important to address the consequences of wind farms on biodiversity,
specifically birds. These include the threat of disturbance to the habitat of the local as well as the
migratory species. In this article, the author has made an attempt to analyze the international
obligations of India with respect to renewable energy such as wind farm and bird safety.
International Obligations
As per pacta sunt servanda, mentioned under Article 26 of VCLT, States must carry out their
treaty obligations in good faith.
Therefore, it becomes pertinent that by constructing and operating the wind farm, India must act
in compliance with its obligations under the [1] Convention on the Conservation of Migratory
Species of Wild Animals (CMS), [2] Convention on Biological Diversity (CBD), [3] Paris
Agreement (PA) and the United Nations Framework Convention on Climate Change
(UNFCCC).
[1]Convention on the Conservation of Migratory Species of Wild Animals (CMS)
With regard to the CMS, Article 2(2) stipulates that Parties must prevent migratory species from
becoming endangered, and predict effects of actions which might cause harm to them.
Consequently, States have a duty to conserve all critical sites for migratory species, such as
feeding and roosting areas, which are threatened by turbines. This can be done by monitoring the
turbines and implementing mitigation.
In India, there has been a few studies on the effect of wind farms on birds. According to one such
study, 47 carcasses of birds belonging to 11 species which fall under threatened species, have
been found dead near Kutch, Gujarat and in Davangere, Karnataka. These include Dalmatian
pelican and painted storks. Moreover this region is close to four biodiversity areas, with diverse
bird population. The species of raptors move in a circular motion over the surrounding grassy
area thus, increasing the probability of collision with wind blades.
Wind farms have been recognized as one of the primary causes of bird fatalities in India. Their
proximity to roosts, and migration routes increases fatalities. Furthermore, Birdlife International
has also stated that wind turbines must not be sited in areas wherein there is a risk of collision to
migratory species such as birds. India has failed to predict such fatalities and constructed the
wind farm along critical sites and migration route of these birds, which is at high risk of
extinction. Further, despite the occurrence of fatalities, India has yet not taken any mitigation
measures. Since India has ratified the CMS in 1983, it is bound to these obligations. In fact, the
right is also recognized by the UN as a customary practice, owing to their recognition in
international as well as regional standards which would eventually oblige India to abide by the
law.

[2]Convention on Biological Diversity (CBD)

Article 8(d) stipulates that States must maintain viable populations of species. Pursuant to the
same, while developing Nationally Determined Contributions (NDCs), parties should integrate
biodiversity considerations, and negative impacts of mitigation into all climate change responses,
such as renewable energies.
The birds near the wind turbines such as raptors are classified as an indicator species, making it
important for biodiversity conservation. As part of its NDC, Gujarat and Karnataka constructed a
wind farm that is known to result in bird fatalities, and threaten population viability. This has
caused deaths of several raptors, which would have also included females making them more
susceptible to turbines causing exacerbated negative population effects. As per the report of
BNHS (2013), birds and bats have long life spans and low reproduction rate that lead to greater
probability of extinction hence threatening the viability of their population.

Even though India provides for a separate biodiversity law based on CBD, i.e., Biodiversity Act,
2002, with an objective of conservation, sustainable use and equitable benefit sharing out of bio
resources, it has failed to incorporate the conservation and mitigation method to protect the
species from the harm caused by renewable energy such as wind farms. Furthermore, India does
not provide for any specific law and regulations which govern the renewable energy sector but
basically relies on various policies such as The National Action Plan on Climate Change
(NAPCC) etc. for the development of the same. Even these policies lack such mitigation
measures. The above analysis clearly illustrates that India has failed to comply with its obligation
under the CBD.

[3] The Paris Agreement and the United Nation Framework on Climate Change
The Paris Agreement and the United Nation Framework on Climate Change aims to strengthen
the global response to the threat of climate change and promotes the idea of renewable energy.
However, Article 4(1) of the UNFCCC imposes an obligation upon Parties to give due
consideration to all types of ecosystems, including terrestrial ecosystems, in their endeavors to
mitigate climate change. Even the Paris Agreement under Article 7 requires Parties to take
preservation of ecosystems into consideration while deciding their NDC.
In the cases stated above, India has clearly failed to comply with its obligation under the Paris
Agreement and UNFCCC. India ratified UNFCCC and Paris Agreement in 1993 and 2016
respectively. This clearly demonstrates its obligation towards the two conventions. Even after
being the member, it has disregarded the wind farm’s impact on the ecosystem of birds and
reptile species, pushing it towards a more vulnerable stand. This clearly depicts that India has not
only neglected its responsibility towards the protection of biodiversity but has also failed to
comply with its obligation under Paris Agreement and UNFCCC.
Furthermore, it also becomes pertinent to oblige by the customary obligations such as due
diligence which includes (a.) EIA and (b.) Precautionary Principle.
(a.) Environment Impact Assessment [EIA]
In the case of Pulp Mills on The River Uruguay, it has been stated that as per customary law, the
States possess the due diligence obligation wherein they must conduct an EIA to study the
impact of wind turbines on the migratory species. According to Scientific Council of the CBD,
an EIA is the formal process of carrying out the likely environmental implications of a proposed
project. It is used to identify the environmental, social and economic impacts of a project prior to
its approval or decision-making. In the Gabcikovo Nagymaros case, EIA has been referred as a
continuing obligation, which is also iterated in the 11th Conference of Parties of the CMS with
specific regard to wind farms and migratory species.
According to a report by Thomas H. Kunz1, it is non-viable to accurately assess the number of
bird fatalities before constructing the wind turbines because evidence suggests that birds are
attracted to the turbines, and fatalities are caused due to collisions to the moving blades.
Therefore, post-construction monitoring is important in this case.

With respect to India, there have been instances wherein the significance of EIA have been
undermined. One such instance relates to wind farm project in Andhra Pradesh which was given
approval by the government. However, such approval seems to be skeptical from the lens of
Ministry of Environment Forest and Climate Change. This is because there has been just a single
study which was contested only in the month of rainy season and not during winters or post
winters when migratory birds enter the subcontinent. The act of approval by the government
projects that it was merely done for its own gain.
Moreover, the current EIA framework i.e. EIA Notification 2006 does not incorporporate wind
and other renewable energy sources. Even the newly proposed Draft EIA 2020 excludes these
energy sources. This clearly illustrates that the government has not acknowledged the principles
of due diligence which has been internationally recognised through Rio Declaration, CBD, and
CMS to which India is a party.

(b.)Precautionary Principle [PP]

According to customary international law, it has been stated, where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing
measures to prevent environmental degradation. 2 This has also been iterated in Principle 15 of
the Rio Declaration. PP is recommended to avoid negative impacts of climate change mitigation
activities on biodiversity. Therefore, due to the irreversible nature of fatalities, were bird
fatalities are high, such as at wind farms, PP ought to be observed through mitigation.3

However, the Indian authorities do not seem to have paid any heed to the above principle. In
Kutch, Gujarat, the wind farm has been constructed on a migration route of the birds from
Arctic, Europe and Central Asia and includes critical areas, causing increased fatalities. Due to
collision, and barotrauma effects, these birds face injury and ultimately die, making it an
irreversible harm. Therefore, it becomes pertinent that Indian States must take into consideration
the Precautionary Measure which they have been neglecting for a long period now.
Conclusion
1 Thomas H Kunz et al., Ecological impacts of wind energy development on bats: questions, research needs, and
hypotheses, 5(6) Frontiers in Ecology and Environment. 315, 315 (2007).
2Phillip Sands et al., Principles of International Environmental Law 279 (3d ed. 2012).
3 Edward B. Arnett et al., Behavioral Responses of Bats to Operating Wind Turbines 72(1) Journal of Wildlife
Management 123, 132 (2008).
It is commendable to say that India being a developing country, do hold a laudable stand when it
comes to the development of renewable sources but on another side, it lacks a strong position
with respect to the conservation of biodiversity. It is to be noted that such advancement must be
conducted keeping in mind the mitigating measures to save biodiversity. Even though, the Indian
government have announced to have guidelines to save birds from wind energy farms, the same
have not been announced yet. Therefore, it is the need of an hour that the government take
action.