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Accidental Bird Kills by Industry Legal Under Interior Plan (2)

Jan. 30, 2020, 8:56 PMUpdated: Jan. 30, 2020, 9:44 PM

The Interior Department plans to cement into regulation its 2017 opinion that the accidental killing of migratory birds isn’t a criminal act—a reversal of prior federal policy that prosecuted unintentional bird killings as a misdemeanor, Interior officials said Thursday.

The U.S. Fish and Wildlife Service is beginning a rulemaking that would punish only those who intentionally kill migratory birds, the service said Thursday.

Interior Solicitor Daniel Jorjani issued an opinion in 2017 that rejected the federal government’s century-long interpretation of the 1916 Migratory Bird Treaty Act as criminalizing companies that accidentally kill birds during industrial activities, such as wind turbines and oil and gas development.

“We are taking action today to make sure our rules and regulations are clear,” Aurelia Skipwith, director of the U.S. Fish and Wildlife Service, said in a statement. “We look forward to an open and transparent process that will ensure ample opportunity for public input.”

Oil Spill Deaths

A company would only be prosecuted under the MBTA if it intentionally pursues, hunts, wounds, traps or collects birds, said Jerome Ford, assistant director of the U.S. Fish and Wildlife Services’ migratory bird program.

Under the previous interpretation of the MBTA, oil companies have been convicted for the deaths of birds found in oil sump pits, and mining companies have been prosecuted after birds were found dead because of contamination from mine tailings, according to a 2010 Congressional Research Service report.

Exxon Corp. paid a $25 million criminal fine for bird deaths following the 1989 Exxon Valdez oil spill, the report said.

Interior Department officials, briefing reporters on condition of anonymity, said Thursday that companies responsible for oil spills or mine contamination that kill birds would no longer be prosecuted under the Migratory Bird Treaty Act.

Other laws, such as Superfund, could be used to take action against companies found to have killed birds because of contamination, one Interior official told Bloomberg Environment.

Interior Department officials refused to respond to questions about the proposed rule for the record.

Conflicting Rulings

Federal courts have issued conflicting rulings about how strict the act is regarding accidental bird deaths.

Some courts have ruled that under the act, the government doesn’t have to prove that companies intended to kill birds in order to be convicted, the CRS report said. Others have ruled that such a position is too strict.

“With five federal circuit courts of appeals divided on this question, it is important to bring regulatory certainty to the public by clarifying that the criminal scope of the MBTA only reaches to conduct intentionally injuring birds,” Rob Wallace, assistant Interior secretary for fish and wildlife and parks, said in a statement.

Environmental groups say they believe the regulations would give companies a free pass to kill birds with impunity and prevent a future administration from easily reversing Jorjani’s opinion.

“They’re trying to cement it as much as they can into law so they’ll make it hard to change,” said Bob Dreher, senior vice president of conservation programs at Defenders of Wildlife. “They’re trying to make things as durable as possible.”

The American Petroleum Institute said Thursday it supports the proposed rule because it reinforces the original intent of the MBTA, API spokesman Reid Porter said.

API does not believe that the oil and gas industry is a “primary threat” to birds, he said.

The American Wind Energy Association said it is still reviewing the proposed rule.

Opinion Challenge

A group of states and environmental groups, including the Audubon Society, are challenging the Jorjani opinion in U.S. District Court for the Southern District of New York. They say it took away a tool state law enforcement used to reduce private industry’s impact on bird populations, including at wind farms and other energy developments.

The states challenging the opinion include California, Illinois, Maryland, Massachusetts, New Jersey, New York, and Oregon.

“For decades, both Republican and Democratic administrations have relied on the Migratory Bird Treaty Act as the primary tool for protecting birds in this country,” Audubon President and CEO David Yarnold said in a statement. “This mean-spirited rule is pure politics and birds will pay the price.”

A bipartisan effort in Congress would reverse Trump administration efforts to decriminalize accidental bird killings.

The House Natural Resources Committee on Jan. 15 advanced the Migratory Bird Protection Act (H.R. 5552), sponsored by Rep. Alan Lowenthal (D-Calif.). It would amend the Migratory Bird Treaty Act to affirm that the law applies to accidental bird deaths by commercial activities.

The bill has two Republican supporters: Reps. Jeff Van Drew (N.J.) and Francis Rooney (Fla.), who aren’t members of the Natural Resources Committee. It would face an uncertain future in the Republican-controlled Senate.

A 45-day comment period on the Interior Department’s rulemaking begins Feb. 3.

(Updated with comments from the Interior Department and industry groups. )

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; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com

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