A legally grounded common sense decision by the Department of the Interior solicitor to bring clarity to the enforcement of the Migratory Bird Treaty Act (MBTA) had led to hyperventilating voices claiming the decision is an imminent threat to birds. The Hill recently ran an opinion piece from the Cornell Lab of Ornithology, which merits a quick fact check on the reality facing industry, Congress and the Interior Department.
Let’s be clear, the overly strict enforcement of incidental take against American industry under MBTA is about hamstringing vital economic development and energy production. According to the 2014 American Bird Conservancy Report, house cats kill nearly 2.4 billion birds each year, buildings and windows claim another 599 million birds, and automobiles take out an additional 200 million birds. In total, Americans (and their feline friends) kill more than 3 billion birds each year, without any expectation of criminalization. The intent of the MBTA has been to prevent direct “take,” not to prohibit the incidental activities of your cat, car, building, or responsible development.
Because of the overly strict interpretation of the MBTA, the tiny fraction of birds that incidentally interact with American industry have resulted in criminal charges, massive penalties and threats to project financing.
In their own opinion, the Cornell authors highlight that actual enforcement of this “strict liability” statute is functionally impossible and yet they endorse the broad arbitrary prosecutorial discretion by the Interior MBTA enforcement officers.
To bring balance, the solicitor’s opinion recognized a well-grounded precedent from multiple federal court decisions that MBTA was designed to only address direct take. In September 2015, the Fifth Circuit Court of Appeals ruled that the MBTA only prohibits intentional acts that directly kill migratory birds.
The decision put the Fifth Circuit in agreement with the Eighth and Ninth Circuit Courts. However, these decisions have still left the implementation of the MBTA to Interior’s discretion.
Recognizing this discretion, the Cornell authors say, “MBTA is seldom used in a punitive fashion.” The fact is that MBTA is used in an arbitrary and punitive fashion is its own threat to good policy, no matter the frequency. Increasingly, energy companies have had trouble finding financing and project investment due to the real threat of criminal prosecution under MBTA’s strict liability.
This capricious enforcement was clear when Duke Energy settled with the federal government over an MTBA case. Highlighting the uneven agreement, the American Wind Energy Association said Duke agreed to “be held to a higher standard than companies in other sectors, not only paying a fine for the impacts, but agreeing to avoid, minimize and mitigate for future impacts, and conduct research into means for reducing impacts in other locations.”
Meanwhile, the Minneapolis Vikings’ shiny new stadium, a beautiful glass structure, is actively killing birds that fall victim to the reflection, and there have been no penalties or lawsuits. Finally, the real reason that the authors and others are so outraged is that the solicitor’s opinion stops massive mission creep by the Fish and Wildlife Service (FWS) into establishing a national permitting program.
Using the MBTA, the Obama administration started “exploring a regulatory process for authorizing incidental take of birds.” The goal — to create a national FWS permitting program for all projects which “may” have an impact on migratory birds and new fees for “mitigation funding” for permits issued.
The first targets of this new permitting program were intended to be America’s diverse energy industries. FWS said it understood these industries the best and would be most ready to start full scale permitting quickly. Meanwhile, the expected recipients of the “mitigation funding” are the same NGOs and research entities that are complaining so vociferously about the solicitor’s change. After years of lobbying, coercing and influencing the Obama administration, their efforts were reversed by the solicitor’s opinion and they no longer have a path to use the arbitrary government decisions to wring out money, power and control of American industry and hamstring our economy.
The MBTA is celebrating its 100th year and is a testament to the American conservation tradition. Thankfully, the Trump administration found common ground with the Ninth Circuit Court of Appeals and made the interpretation of the law clear, MBTA applies to direct take.
This common sense approach ensures that lawful industrial activities are not held hostage to unnecessary threats of criminalization allowing industry to focus on protecting birds, building projects and fueling our economy, without facing the threat of arbitrary punitive decisions.
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