June 7, 2018
Opinions, U.S.

A free pass to kill migratory birds

By David J. Hayes and Lynn Scarlett | The New York Times | June 7, 2018 | www.nytimes.com

One hundred years ago, Congress passed one of the earliest and most consequential conservation laws, the Migratory Bird Treaty Act of 1918. Its language was, and remains, clear and straightforward: Unless an individual has a valid hunting permit, “it shall be unlawful at any time, by any means, or in any manner” to “hunt, take, capture [or] kill” migratory birds.

Power lines, communication towers, wind turbines, oil spills and poison and pesticide applications kill tens of millions of birds a year, according to the United States Fish and Wildlife Service. Many are protected by the act, and their deaths, though unintentional, could be considered violations. Those responsible can be held strictly liable, meaning they are culpable, even if the deaths weren’t intended. This standard is meant to encourage companies to find ways to minimize threats to the 1,000-plus bird species protected by the law, and the relatively few enforcement actions have been limited to the most egregious violations.

Now, however, as part of the Trump administration’s drive to remove “unnecessary” regulatory “burdens” on the energy industry, the Interior Department has advanced an alternative interpretation of the law that absolves companies from engaging in foreseeable and preventable activities that kill birds. The department’s political appointees argue that the law only triggers penalties when individuals or companies are trying to kill migratory birds.

The implications of the Interior Department’s new position on bird killings are troubling, because building owners, oil and wind energy companies and others will no longer have any legal incentive to reduce or eliminate bird deaths caused by their operations.

If this view holds, companies like Exxon or BP would no longer bear any responsibility for bird deaths from oil spills like the thousands that occurred in the Exxon Valdez and Deepwater Horizon disasters. Nor, as is now playing out in South Dakota, would a pest control operator need to pay any heed that poisoning prairie dogs will also kill burrowing owls – migratory birds that also inconveniently occupy prairie dog burrows.

The Trump administration had to work hard to pull off such a radical reinterpretation of the Migratory Bird Treaty Act. The legal opinion takes more than 40 pages to twist the law’s clear language outlawing bird killings resulting from “any means whatever” and occurring “at any time or in any manner” into a contrived new standard that only penalizes bird killings when “the actor [is] engaged in an activity the object of which was to render an animal subject to human control.”

We have joined with a senior group of former Interior Department appointees from both parties, as well as career conservation professionals who have worked at the department for the past half-century, to urge Secretary Ryan Zinke to suspend this misguided opinion. The National Audubon Society and other conservation organizations recently joined the fray by filing two lawsuits to overturn the Interior Department’s action.

Although some courts have disagreed over whether bird deaths known as “incidental take” – deaths that are the result, but not the purpose of an activity – are prohibited by the law, the federal government, under both parties, has long considered foreseeable and preventable killings as violations of the act, whether intended or not.

We recognize that, as with many laws, federal officials enforcing the Migratory Bird Treaty Act’s strict liability penalties for bird killings need to exercise discretion when determining whether it is appropriate to impose penalties. And this is exactly what they have done for decades, adhering to Justice Marshall’s admonition that “the value of a sword of Damocles is that it hangs – not that it drops.”
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Toward that end, the fish and wildlife service has worked cooperatively with oil producers to cover exposed crude oil waste pits with nets to keep birds from landing in them, with the electric utility industry to minimize raptor deaths on transmission lines, and with the wind industry to improve the siting and operation of wind turbines to minimize bird killings.

Undertaking these voluntary actions to stop foreseeable and preventable bird killings has not held back our energy industry. Nor has the occasional enforcement action when companies have turned a blind eye toward activities that have needlessly killed migratory birds. The agency has acted only in instances seen as particularly flagrant.

Upending core protections in the Migratory Bird Treaty Act, and removing the incentives for companies to work cooperatively with government and nonprofit partners to protect our nation’s birds from harm, does a profound disservice. Our nation’s magnificent birds deserve better.

David J. Hayes is the executive director of the State Energy and Environmental Impact Center at New York University’s law school. Lynn Scarlett is the co-chief external affairs officer at The Nature Conservancy. Mr. Hayes and Ms. Scarlett were deputy secretaries at the United States Department of Interior.