The Nickel Report

Since its first day in office, the current administration has taken steps to curtail the development of renewable energy, and wind energy in particular. Just over a year in, the administration’s intentions do not seem to have changed, but there are signs that legal challenges are affecting implementation of its policies toward renewable energy development.

The scope of the prohibition of “take” under the Migratory Bird Treaty Act (MBTA or the Act) – and specifically whether the prohibition includes the incidental (unintentional) take of migratory birds – is an issue that has been hotly debated for years. As we reported previously, the federal circuit courts do not agree on the issue, and the federal government’s position has changed several times in recent years, depending on the political party in control of the Executive Branch. The Trump administration amended the government’s position again on April 11, 2025, when the Acting Solicitor for the US Department of the Interior issued a one-page legal opinion (or “M-Opinion”) repealing opinion M-37065, which was issued during the Biden administration and specified that the MBTA prohibits both intentional and incidental take of migratory birds, and restoring opinion M-37050, which was issued during the first Trump administration and specifies that only intentional take of migratory birds is prohibited.

On February 12, 2024, the U.S. Fish and Wildlife Service (USFWS or the Service) published a final rule revising the regulations governing the issuance of eagle take permits (ETPs) under the Bald and Golden Eagle Protection Act.  89 Fed. Reg. 9920 (Feb. 12, 2024).  The rule revises certain requirements for individual permits – referred to as “specific” permits in the rule – and creates a new program of general permits covering certain activities.  Activities for which general permits will be available include (i) incidental take of bald and golden eagles associated with qualifying wind energy projects, (ii) incidental take of bald and golden eagles associated with power line infrastructure, (iii) certain activities that may cause bald eagle disturbance take, and (iv) certain categories of bald eagle nest take.  We previously reported on the proposed version of the rule, which was published in September 2022.

Last week marked the conclusion of the 28th Conference of Parties (COP28) to the United Nations Framework Convention on Climate Change (UNFCC) in Dubai, United Arab Emirates (UAE). As we previously discussed, the expectations were COP28 would tackle a range of critical issues toward achieving the climate goals set out in the Paris Agreement. Below is an overview of the most significant developments coming out of Dubai, as reflected in the COP28 agreement, and the expectations for future climate action.