US businesses may go scot-free for accidental bird deaths under proposed rule putting bird population at risk
The US Fish and Wildlife Service’s proposed regulation clarifies that the scope of the Migratory Bird Treaty Act only extends to conduct intentionally injuring birds
The 2010 Deepwater Horizon accidental oil spill is often cited as one of the worst environmental disasters in the US, which killed many birds — some pegging it at thousands, and others at millions. The oil rig, operated by British Petroleum (BP), blew out in the Gulf of Mexico. On January 29, 2013, BP pled guilty to 14 criminal counts stemming from its actions related to the Deepwater Horizon oil spill, including one misdemeanor count of violating the Migratory Bird Treaty Act. As part of the settlement, BP agreed to pay $100 million to the North American Wetlands Conservation Fund (NAWCF).
If such an incident occurs now, businesses might be able to escape without paying any penalty. The reason: the US Fish and Wildlife Service has proposed that businesses and industries will not be held responsible for accidental or unintentional bird deaths.
“Today, the US Fish and Wildlife Service (Service) is proposing a rule that defines the scope of the Migratory Bird Treaty Act (MBTA) to provide regulatory certainty to the public, industries, states, tribes and other stakeholders. This proposed rule clarifies that the scope of the MBTA only extends to conduct intentionally injuring birds. Conduct that results in the unintentional (incidental) injury or death of migratory birds is not prohibited under the act,” says the statement.
According to Assistant Secretary for Fish and Wildlife and Parks Rob Wallace, 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.
“That said, we will continue to work collaboratively with states, cities, conservation groups, industries, trade associations and citizens to ensure that best practices are followed to minimize unintended harm to birds and their habitats,” says Wallace in the statement.
The proposed regulation says that the operative verbs in the MBTA (pursue, hunt, take, capture, kill) “are all affirmative acts . . . which are directed immediately and intentionally against a particular animal — not acts or omissions that indirectly and accidentally cause injury to a population of animals.”
According to the Service, collisions with buildings and cars are the second and third most common human-caused threat to birds, killing an estimated 599 million and 214.5 million birds per year, respectively. It argues that reading the MBTA to capture such incidental takings could potentially transform average Americans into criminals.
The guidelines, according to the document, are explicit that the Service may only take full compliance into consideration in exercising its discretion whether or not to refer an individual or company to the Department of Justice for prosecution.
“Under this approach, it is literally impossible for individuals and companies to know exactly what is required of them under the law when otherwise lawful activities necessarily result in accidental bird deaths. Even if they comply with everything requested of them by the Service, they may still be prosecuted, and still found guilty of criminal conduct,” it says.
“As a matter of both law and policy, the Service proposes to adopt a regulation limiting the scope of the MBTA to actions that are directed at migratory birds, their nests, or their eggs, and to clarify that injury to or mortality of migratory birds that results from, but is not the purpose of, an action (that is, incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act,” says the proposal.
This action codifies the 2017 Department of the Interior Solicitor’s Office Opinion, which analyzed the scope of the MBTA and determined the act only applies to the intentional take of migratory birds, and that “the take of birds resulting from an activity is not prohibited when the underlying purpose of that activity is not to take birds.” The US Fish and Wildlife Service operates under the Department of Interior.
The Service clarified that the proposed regulation or the Solicitor’s Opinion did not affect the Endangered Species Act and the Bald and Golden Eagle Protection Act, as well as state laws and regulations.
“The proposed rule will change how the Service administers the MBTA, and the Service has determined an Environmental Impact Statement under the National Environmental Policy Act is the most efficient and comprehensive approach for considering the potential impacts of this action on the environment,” says the statement.
It emphasizes that this is the first step in an “open and transparent public process” that the US Fish and Wildlife Service will continue to manage throughout the development of the rule-making process.
Comments have been invited from the public on the proposed regulation. “The public is encouraged to provide input to help ensure that these changes are clear, effective and advance the goal of migratory bird conservation,” said the notice.
A 45-day “scoping process” has been initiated, during which the Service has invited public input “to help define the range of issues and possible alternatives to be addressed in the Environmental Impact Statement.”