By John McFerrin

            The United States Department of the Interior has proposed regulations that would reduce protection for migratory birds through a dramatic reinterpretation of the Migratory Bird Treaty Act.

Background

The Migratory Bird Treaty Act is the United States’ effort to implement a 1916 treaty between the United States, Mexico, and Great Britain (agreeing on behalf of Canada) to protect birds that migrate among the three countries.  The treaty was later expanded to include Russia and Japan.  It prohibits pursuing, hunting, taking, capturing, killing, or attempting to do the same migratory birds, their nests, or their eggs. The list of birds protected by United States law goes on and on–three species of cranes, three species of cowbirds, sixteen species of owls, fifty five species of warblers (by my count), etc. etc. etc., for pages and pages, birds that only the most enthusiastic birder would even know existed.  If you want to see the whole list, go to 50 Code of Federal Regulations § 10.13.

Protection for all birds on the list is not absolute.  Some birds on the list are hunted for sport or even food in some rare instances.  The Secretary of the Interior has issued regulations listing some birds that may be pursued, hunted, killed, etc.  Absent a regulatory exemption, the killing, capturing, etc. of birds on the list is prohibited.

What the fight is about

            For a century everybody–agencies, the birds, the public, everybody—assumed that the Migratory Bird Treaty Act protected birds from all killing, whether specifically intended or not.  Going out and intentionally killing a bird was, of course, prohibited.  Doing something such as destroying habitat that also resulted in the deaths of birds was also prohibited, even if the primary purpose of the habitat destruction was something other than killing birds.

The proposed regulation wants to change that.  Under the proposed regulation, only actions that have as their goal the killing of birds would be prohibited.  Actions that had another purpose but resulted in the deaths of birds would not be prohibited.  Shooting a migratory duck would be prohibited; causing its death by draining wetlands would not be.    

The proposed regulation would remove protection for migratory birds from the only real threats they face.  Although there are rare exceptions, we don’t routinely and deliberately kill birds.  There was a time when migratory birds were hunted for their feathers but times have changed.  There was a time when four and twenty blackbirds might be baked in a pie but the nursery rhyme reflects the eighteenth century, when it first appeared in print.

Instead of being hunted for their feathers or baked in a pie, the threats birds face are modern ones–oil pits and spills, high-tension power lines, communications towers, etc.  Birds can die when they land on an uncovered oil waste pit that appears to be typical pond, or run into an unseen power line. According to studies, power lines kill up to 64 million birds a year. Communications towers are estimated to kill up to 7 million birds per year, and uncovered oil waste pits account for up to another 500,000 to 1 million bird deaths every year. Data on wind turbines are harder to come by, but current estimates are approximately 234,000 bird deaths a year.

These death tolls—even with the Migratory Bird Treaty Act being in effect—are dramatic enough.  The really sobering thought, however, is that the majority of the efforts being made today to prevent the tolls from being higher are being done in an effort to comply with the Migratory Bird Treaty Act.

While the Migratory Bird Treaty Act has not saved all birds from these threats, it has acted to reduce the threats.  It has done so both by the rare prosecution (14 in the last two decades) and by encouraging companies to come up with innovative ways to avoid bird deaths.  

Our experience in West Virginia demonstrates both how the Act (as it has always been interpreted) has both punished irresponsible companies for killing birds and urged companies to plan operations so as to avoid bird deaths.  

In 2011, approximately 500 birds were killed in an accident at the Laurel Mountain industrial wind facility.  The fatalities occurred by collision and exhaustion at the Laurel Mountain substation, where the lights were left on during foggy weather.  Wind power generation plant AES Laurel Mountain LLC pled guilty to two federal misdemeanors for failing to comply with the Migratory Bird Treaty Act by not using “reasonable, prudent and effective measures to avoid or minimize the impact of lighting on migratory birds.”  

The Atlantic Coast Pipeline included provisions to protect migratory birds in its planning.  The pipeline’s Migratory Bird Plan contains fifteen pages of conservation measures to mitigate and minimize impacts to migratory birds. These measures have been fully incorporated into Federal Energy Regulatory Commission’s project approval.

The same thing happened with the Mountain Valley Pipeline.   To protect migratory birds in the path of the pipeline, MVP committed to several avoidance and minimization measures developed in coordination with Fish and Wildlife Service, and incorporated into project approvals.  

Without the Migratory Bird Treaty Act (in its present interpretation), none of these protections would have happened.  The wind power generation plant did not set out to kill birds.  It just left the lights on with the predictable result that birds were killed.  The pipeline companies did not set out to kill birds by destroying their habitats.  They just want to build a pipeline; bird deaths are a byproduct.  Under the interpretation of the Act proposed, the companies could kill birds with impunity.  Unless they had as their subjective intention the killing of birds, the Migratory Bird Treaty Act would not restrain them.

Nationally, had the proposed policy been in effect at the time, British Petroleum would not have been liable for killing more than 1 million birds during the Deepwater Horizon disaster.   Because British Petroleum did not set out with the intention of killing birds, had the proposed policy been in effect over $64 million of settlement funds would not have been paid out to help birds impacted by the spill, including protecting or restoring more than 350,000 acres benefitting birds and people. 

The word “gut” is often used (and overused) to describe proposals to reduce the effectiveness of regulatory statutes.  Overenthusiastic opponents of even modest proposals sometimes describe them as “gutting” a statute.

This time it really applies.  If the Migratory Bird Treaty Act is only relevant to the intentional killing of birds, it is meaningless.  It goes from being a modern tool to protect birds to a relic, a nearly meaningless reminder of a time when we shot pigeons for food and Snowy Egrets for their feathers.  We may as well file it away with statutes prohibiting wearing hats in public theaters.