The Migratory Bird Treaty Act prohibits capturing killing, selling, or otherwise endangering the well-being of migratory birds. It has rescued numerous species, including the snowy egret, which was hunted to the brink of extinction in the late 1800s but now has a U.S. population of more than a million today. Like all laws, this act is imperfect—for example, it contains no explicit exception for socially or economically vital activities that incidentally harm a small number of animals. However, because of smart management of the law and prosecutorial discretion, it has remained on the books for nearly a century with few changes.
Undoing a law of such historical pedigree should be discussed and debated at length, but instead the Migratory Bird Treaty Act is at risk of being gutted with very little deliberation. Last week, Representative Jeff Duncan of South Carolina inserted a rider, a type of amendment, into the budget for Commerce, Justice and Science that would prevent federal prosecutors from enforcing the migratory bird law. While it may not pass—riders get inserted and then dropped in a lot of legislation—it could also make it through and render the Migratory Bird Treaty Act a dead letter.
The move is the latest in a string of attacks on the act in recent years. Last year the House Natural Resources Committee accused the U.S. Fish and Wildlife Service of selectively targeting oil and gas companies and demanded that the agency supply records for every prosecution under the law—a request that took one-quarter of the FWS staff away from their normal duties, according to agency director Dan Ashe. In 2012, Representative Duncan proposed reducing fines for all energy producers that kill non-endangered migratory birds. In January, he introduced a bill to exempt all energy companies from prosecution for accidental killing of birds protected under the act.
It’s worth looking more deeply into the nature of these opponents’ critiques. The main issue seems to be that the dictates of the Migratory Bird Treaty Act are detailed and absolute. For the purpose of illustration, here’s the core of the statute:
[I]t shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof…
There are some exceptions for indigenous Alaskans, but, on the law’s face, its prohibitions apply to almost everyone, almost all the time. Harm a migratory bird without a permit, and you’re subject to prosecution. This is why it has become controversial.
The most publicized debate involves wind farms. FWS estimates that the spinning rotors on wind turbines kill 500,000 birds per year, and the death toll could more than double by 2030. Although it’s not clear how many of those dead birds are legally protected, even a single death of a migratory bird is technically a violation of the act. In their public comments, critics of the act focus on this threat to wind farmers. Shortly after introducing the rider that would gut the law, Representative Duncan tweeted:
Should green-energy producers be liable 4 incidental deaths of birds of prey?My amendment will delay prosecution until that is worked out.
— Rep. Jeff Duncan (@RepJeffDuncan) June 3, 2015
This is a legitimate concern. A small number of wind energy producers have been prosecuted for killing migratory birds. In 2013, for example, Duke Energy settled charges that its turbines killed 14 golden eagles and 149 other protected birds in Wisconsin.
A skeptic would suggest, however, that congressional critics of the Migratory Bird Treaty Act are using wind energy as a stalking horse for more powerful interests. After all, power lines are responsible for up to 174 million bird deaths each year. Communications towers kill at least 4 million birds, possibly 50 million. Windows, such as those on the poorly designed Minnesota Vikings stadium, kill at least 100 million birds per year, and some estimate it’s closer to 1 billion. Tailings ponds, vast disposal sites for oil and gas companies, regularly kill migratory birds. Even if the wind industry grows quickly, decades would pass before it might even approach these levels of avian carnage. If the goal is to protect wind farmers, then why do most of the legislative attacks on the Migratory Bird Treaty Act seek to shield all violators from prosecution?
In an interview, Allen Klump, a staffer for Representative Duncan, told me that his plan is to narrow the rider to prohibit prosecutions for accidental killings only, not to suspend all enforcement of the Migratory Bird Treaty Act. In addition, Klump said the rider protects all potential violators, rather than just wind farmers: “We're trying not to favor one form of energy over another. We are trying to identify solutions that would benefit every energy sector.”
Environmental advocates don’t buy that explanation. FWS has already been dealing with the problem by developing best-practice protocols to help wind farmers minimize migratory bird deaths. Companies that follow those guidelines will not face prosecution. Indeed, the only reason that Duke Energy was prosecuted for killing migratory birds was that the company “failed to make all reasonable efforts to build the projects in a way that would avoid the risk of avian deaths…despite prior warnings about this issue from the U.S. Fish and Wildlife Service,” according to the U.S. Department of Justice.
“This is literally a license to kill—that’s what they’re proposing,” says Bobby McEnaney, senior lands analyst at NRDC (disclosure). “There’s no way to nuance that this is an extreme reaction to a complicated problem.”
It’s also hard to accept the assault on the Migratory Bird Treaty Act as a move to protect wind farms, because the attack fits so well into the context of other GOP initiatives. Modern conservative politics often seems like a contest, in which the competitors vie to undo as much social, political, and environmental legislation as possible. For a long time, the conservative bogeyman was Lyndon Johnson, whose Great Society reforms aimed to bring socioeconomic reward in line with the value of a person’s work. When undoing those programs seemed insufficiently ambitious, Tea Party enthusiasts took aim at Franklin Roosevelt’s New Deal.
Representative Duncan has trumped all those initiatives with his move to gut the Migratory Bird Treaty Act, which was enacted in 1918—14 years before FDR would promise a new deal for the American people. To put the MBTA’s age into perspective, the law was originally intended to protect migratory birds from milliners, whose feather-ornamented hats were responsible for countless bird deaths. Today, most people don’t even know what a milliner is, let alone wear feathers on their hats. To put an even finer point on it, this law enacted a treaty cosigned by the United Kingdom on behalf of Canada, because Canada hadn’t yet won the right to conduct its own foreign affairs. We’re talking about a very old law.
To be fair to Duncan, there were opponents who considered the act a federal overreach at the time. But even 97 years ago, that viewpoint belonged to a few people on the extreme right. A very conservative Supreme Court heard and rejected those arguments in 1920. Since that was the same court that had just prevented the federal government from regulating child labor, the fact that the justices viewed the Migratory Bird Treaty Act as a valid exercise in federal power shows how few people questioned the law. It also puts the recent attacks on the act into frightening perspective.
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