Energy Companies Off the Hook for Killing Birds Accidentally

Power lines account for an estimated average of 25 million bird deaths a year. Cjwhitewine/Shutterstock

The Trump administration will no longer criminally prosecute oil and gas, wind and solar companies that accidentally kill migratory birds, according to a memo from the Department of the Interior.

The memo, released Dec. 22, reverses a rule established during the final weeks of the Obama administration in January. NPR reports that the administration suspended the rule in February while its lawyers reviewed the case literature.

Penned by the DOI's principal deputy solicitor, Daniel Jorjani, the memo argues that the Migratory Bird Treaty Act (MBTA) of 1918 applies only to the purposeful killing of migratory birds, not the incidental killing of such birds.

"Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed," the memo reads.

Jorjani shared concerns about potential prosecutorial overreach should the law be applied, writing, "Reading the MBTA to capture incidental takings casts an astoundingly large net that potentially transforms the vast majority of average Americans into criminals. Rather than relying on clear standards that are known in advance, prosecutors are asserting authority to bring cases where individuals and companies are not taking the precautions that the government and the court deem 'reasonable.'

"This approach effectively substitutes the judgement of the court for that of the Congress, which made the MBTA a strict-liability offense and did not provide for mitigation measures. Such an approach presents precisely the sort of recipe for arbitrary and discriminatory enforcement that the Supreme Court has cautioned against."

According to the U.S. Fish and Wildlife Service, collisions with power lines, communication towers and wind turbines account for just over 30 million bird deaths a year, while oil pit-related deaths are around 750,000 a year.

A regulatory easing for businesses

The American Petroleum Institute, a national trade organization that represents the oil and natural gas industry, "applauded" the rule change.

"The U.S. oil and natural gas industry supports protection of migratory birds, and this opinion makes clear that the Migratory Bird Treaty Act should not be used for overzealous enforcement of criminal penalties on those engaging in otherwise lawful activities," API Upstream and Industry Operations Group Director Erik Milito said in a statement. "The Department's approach is an example of astute governance that provides certainty for responsible owners and operators of oil and natural gas facilities."

In 2010, BP pleaded guilty to violating the MBTA as a misdemeanor charge following the Deepwater Horizon oil spill. In 2013, the renewable energy company Duke Energy also pleaded guilty when two golden eagles were killed as a result of the company's wind projects in Wyoming. The Department of Justice referred to it as "the first ever criminal enforcement of the Migratory Bird Treaty Act for unpermitted avian takings at wind projects."

A decision not for the birds

Geese fly near a wind turbine
Wind turbines as bird-killers was a campaign talking point for then-candidate Donald Trump. Bildagentur Zoonar GmbH/Shutterstock

The Audubon Society, a conservation group dedicated to protecting birds and their habitats, condemned the DOI's rollback of the rule.

"....By acting to end industries' responsibility to avoid millions of gruesome bird deaths per year, the White House is parting ways with more than 100 years of conservation legacy," David O'Neill, Audubon's chief conservation officer, declared in a statement.

"Gutting the MBTA runs counter to decades of legal precedent as well as basic conservative principles — for generations Republicans and Democrats have embraced both conservation and economic growth and now this Administration is pitting them against each other. The Migratory Bird Treaty Act is one of the most important conservation laws we have."

The Audubon Society has criticized wind turbines for bird deaths in the past, and it has worked with the industry to find ways to reduce those numbers.

At least one conservation advocacy group has declared that while the Trump administration's easing of the MBTA rules is too narrow, it does acknowledge that the Obama-era rule was far too broad.

"We're seeing the whipsaw from one extreme to the other," Collin O'Mara, president of the National Wildlife Federation, told the Washington Post. "One year in, there's been no balance. If the choice is between energy and conservation, energy always wins."

O'Mara noted that it was "ironic" that the new administration would reduce the number of ways to punish companies for birds' deaths when it was a talking point Trump routinely favored, both before he became a presidential candidate and during his 2016 campaign.

He tweeted in 2012:

"The wind kills all your birds," he said at a 2016 campaign rally in Pennsylvania. "All your birds, killed."

"He's gutting one of the best tools we have to make sure the wind industry is properly siting these projects," O'Mara told the Post.

Indeed, as New Republic has chronicled, the Trump administration has done a good deal to undermine birds' safety, including legislation to allow drilling in the Arctic National Wildlife Refuge.