Interior change removes all incentive for industry to protect migratory birds

The current administration has not been shy about criticizing international commitments made by some of its predecessors. We have heard volumes about the “bad deals” concluded by President Obama, President Clinton, and even President Bush. Now we must add another name to the list of presidents that supposedly let this country down: Woodrow Wilson.

Yes, unnoticed for a century, it appears that President Wilson did us wrong when he signed the Migratory Birds Treaty Act, committing us to cooperate with Canada, Mexico, and other countries to protect birds that travel across our countries.

{mosads}That is the implication of a remarkable opinion recently issued by the acting solicitor for the Department of the Interior. Ignoring longstanding agency practice, numerous judicial decisions, and a 2017 opinion letter from the Department’s solicitor, this letter declares that the Fish and Wildlife Service will no longer have jurisdiction to act against non-intentional industrial killings of migratory birds.

Had this policy been in force when the wreck of the Exxon Valdez caused an oil spill that killed a quarter million birds, the Migratory Bird Treaty Act would not be implicated. When the Deepwater Horizon blow-out killed 700,000 birds, the Act would find no problem. In the strange world envisioned by the administration’s new opinion, the most horrific disasters for migratory birds would not be subject to enforcement action unless someone could point to an oil company official acting like a cartoon villain: twirling his mustache while cackling “that will fix you, my feathered lovelies!”  

Prior administrations of both parties had developed a legal regime that was both true to the language of the statute and far more sensible. Felony charges of harming migratory birds required proof of intent and, as a result, were extremely rare in the industrial setting. Misdemeanor charges, however, could be brought where a company’s irresponsible behavior resulted in the deaths of migratory birds. The Service did not bring these charges lightly, and the Justice Department exercised great prosecutorial restraint.

The possibility of charges, however, gave industry an incentive to seek to minimize bird deaths, often through quite simple, inexpensive means. Placing bird spikes on and around power transformers can discourage birds from nesting there and endangering themselves and their young. The Service and some environmental groups have engaged in highly productive partnerships with industry to find means to reduce hazards to birds around pipelines, power lines, wind farms, and other potentially hazardous sites. This is one of many areas in environmental management where the challenge is not so much costs as getting industry to pay attention to the problem.

The acting solicitor’s opinion cannot withstand serious scrutiny. The Act provides that no one shall “pursue, hunt, take, capture, kill, possess, offer for sale, sell … any migratory bird … or any part, nest, or egg of any such bird” without a valid permit. The opinion acknowledges that “Courts have held that misdemeanor violations of the MBTA are strict-liability offenses” — and then proceeds to disregard them.

When an oil company disposes of wastes in open pools that resemble ponds, it kills the migratory birds that land there and are unable to fly out. When a power company designs transformers as open and inviting nest sites, it kills the birds that enter just as surely as homeowners electrocute rats in traps with similar designs. The lack of intent does the birds no good.

The acting solicitor’s opinion in effect treats the Act as if it only prohibited hunting migratory birds. To do so, it must ignore, or treat as redundant, several other prohibitions in the same sentence.  

Seventeen former senior Interior Department officials, roughly evenly balanced between the two parties, wrote to Secretary Zinke criticizing this abrupt reversal of a longstanding and productive interpretation.

Perhaps recognizing the implausibility of the acting solicitor’s analysis, Rep. Lynne Cheney (R-Wyo.) inserted an amendment to the Migratory Bird Treaty Act into oil and gas legislation that was moving through the House Natural Resources Committee.

If the Interior Department curtails its enforcement efforts in response to the acting solicitor’s opinion, or if Congress unwisely enacts the Cheney Amendment, the results will be dire. Even before this new policy, power lines killed as many as 175 million birds per year with up to 50 million additional birds perishing on communications towers. Oil waste pools took 500,000 to one million more. This is hardly a case of over-zealous enforcement.

The measured steps the Service has taken, however, have saved hundreds of species from extinction. If Congress does not reject the Cheney Amendment and demand that the Department follow this century-old law, all those gains could be lost.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities.