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Trump Wouldn’t Fine BP for Bird Killings if Oil Spill Recurred

Feb. 5, 2020, 5:54 PM

The Trump administration wouldn’t fine an oil company under the Migratory Bird Treaty Act for the mass killing of birds if another oil spill similar to the BP Deepwater Horizon disaster occurred, Robert Wallace, an assistant Interior secretary, told a Senate committee.

The $100 million in fines the Obama administration levied against BP for the thousands of birds that died because of the Deepwater Horizon spill wouldn’t be possible under a new rule the Trump administration proposed Jan. 30 to re-interpret the MBTA, Wallace said at the Senate Environment and Public Works Committee hearing.

For about a century, accidental bird killings, or “takes,” could be prosecuted as criminal misdemeanors under the MBTA. The proposed rule codifies a 2017 Interior solicitor’s opinion that said only intentional killings can be prosecuted under MBTA.

The service’s support for “best practices” for preventing the mass killing of birds prevent criminalizing the actions of businesses that kill birds without meaning to do so, Wallace said.

But Sen. Chris Van Hollen (D-Md.) questioned how the proposed rule would further the mission of the Fish and Wildlife Service by taking away the ability to fine a company like BP when its disasters killed mass birds.

“Indulge me,” said Wallace, who oversees the U.S. Fish and Wildlife Service and the National Park Service, adding that the MBTA doesn’t allow for civil penalties, only criminal penalties that are too broadly applied.

The MBTA could apply to millions of birds killed by plate glass windows and wind turbines, and the owners of the buildings and wind farms wouldn’t get so much as a warning about possible criminal charges, Wallace said.

“Nobody intends for that provision to apply for someone who unintentionally kills a couple birds,” Van Hollen said. But under this proposed rule, it would be impossible to hold oil companies accountable for spills, and it results in states thinking they don’t need to create alternative nesting grounds when habitat is bulldozed for a construction project, Van Hollen said.

Birds Killed in Oil Pits

Sen. Kevin Cramer (R-N.D.) said the oil and gas industry in North Dakota has been a victim of “zealous” prosecution of bird deaths in oil pits.

“Clearly this was a lawful commercial activity,” and the prosecution of the bird killings “was more of a representation of the hatred of the industry than it was for the love of birds,” Cramer said, adding that he applauds the decision to revise the MBTA rule.

Sen. Kirsten Gillibrand (D-N.Y.) asked Wallace why the Fish and Wildlife Service is developing policies that undermine the protection of birds.

Wallace assured her that “best practices working groups” the service has formed are committed to working with industry to help “minimize the amount of take on migratory birds.”

Sen. Ben Cardin (D-Md.), said he worries the proposed MBTA rule opens the door to “irresponsible corporate action” that kills birds.

“I hope you will be vigilant in this regard and recognize that you don’t want to give legal footing for irresponsible corporate action as it relates to migratory birds,” Cardin said.

“I totally agree with you,” Wallace said. “We need to be at the forefront of best practices.”

To contact the reporter on this story: Bobby Magill at bmagill@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Jo-el J. Meyer at jmeyer@bloomberglaw.com; Renee Schoof at rschoof@bloombergenvironment.com

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