Claiming wind companies have been favored over oil and gas companies, the U.S. Department of the Interior (DOI) has issued a notice stating that the Migratory Bird Treaty Act (MBTA) will not be criminally enforced in the case of accidental bird deaths.

A recently released memorandum from the agency explains, “Unless permitted by regulation, the MBTA prohibits the ‘taking’ and ‘killing’ of migratory birds. ‘Incidental take’ is take that results from an activity, but is not the purpose of that activity.” The DOI says this was “most recently addressed” in Opinion M-37041, issued in January 2017 – still under the Obama administration – concluding that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.”

However, the agency says the opinion was “suspended pending review” under the Trump administration in February 2017, and now, “in light of further analysis of the text, history, and purpose of the MBTA, as well as relevant case law, this memorandum permanently withdraws and replaces Opinion M-37041.”

Notably, the DOI claims that “the absence of clear, public and binding standards effectively authorizes or encourages discriminatory enforcement, particularly against disfavored industries or persons.” Implying wind companies have been favored over oil and gas, the agency says, “As some commentators have noted, ‘the lack of prosecutions of wind energy developers or operators creates a strong inference that prosecutorial discretion is being exercised unevenly to favor wind energy over other activities such as the oil and gas industry.’”

According to a statement from the National Audubon Society, the MBTA “protects more than 1,000 bird species – in part because it requires industries to implement commonsense best-management practices.”

In 2013, Duke Energy Renewables reached a $1 million settlement with the U.S. Department of Justice regarding the deaths of birds at two Duke wind facilities in Wyoming. Notably, the case was the first criminal enforcement of the MBTA for unpermitted avian takings at wind farms. Under a plea agreement, Duke was placed on probation for five years and was ordered to implement an environmental compliance plan aimed at preventing further bird deaths in Wyoming. Duke was also required to apply for an eagle take permit. PacifiCorp Energy also faced a similar suit in 2014 after pleading guilty to violating the MBTA at wind farms in Wyoming.

In response to the DOI’s notice, David O’Neill, Audubon’s chief conservation officer, says, “Gutting the MBTA runs counter to decades of legal precedent, as well as basic conservative principles; for generations, Republicans and Democrats have embraced both conservation and economic growth, and now, this administration is pitting them against each other. The Migratory Bird Treaty Act is one of the most important conservation laws we have.”

However, the DOI argues in its memorandum, “The text, history and purpose of the MBTA demonstrate that it is a law limited in relevant part to affirmative and purposeful actions, such as hunting and poaching, that reduce migratory birds and their nests and eggs, by killing or capturing, to human control.

“Even assuming that the text could be subject to multiple interpretations, courts and agencies are to avoid interpreting ambiguous laws in ways that raise grave Constitutional doubts if alternative interpretations are available,” the agency continues. “Interpreting the MBTA to criminalize incidental takings raises serious due process concerns and is contrary to the fundamental principle that ambiguity in criminal statutes must be resolved in favor of defendants.”

Applauding the DOI’s decision, Kathleen Sgamma, president of Western Energy Alliance, says in a statement, “The MBTA was enacted by Congress in 1918 as a criminal statute to stop the hunting and poaching of migratory birds. It was not meant to address activities that do not directly kill birds but just carry unintended effects, such as noise or habitat impacts.”

Sgamma claims that under the Obama administration, “seven oil and natural gas companies were prosecuted for killing 28 birds at the same time that wind energy companies were allowed to kill thousands of birds, including bald and golden eagles.” The DOI notice, she says, “returns the rule of law and will help prevent the disparate treatment of industries and the politically motivated use of the MBTA as a weapon.”

Tim Charters, senior director of government affairs at the National Ocean Industries Association, adds in a statement, “[This] action by the Department of the Interior’s solicitor brings reason and balance to the Migratory Bird Treaty Act. Over the last few years, the management of ‘take’ under MBTA has been riddled with flawed decisions that have created massive uncertainty. The mixed interpretations have done nothing to prevent avian mortality. Thankfully, [this] action brings a commonsense approach by recognizing many circuit court findings that the scope of takings under the MBTA only prohibits intentional acts that directly kill migratory birds. This commonsense approach ensures that lawful activities are not held hostage to unnecessary threats of criminalization.”

Regardless, a report from Bloomberg notes that accidental bird deaths can “still technically be prosecuted under [MBTA] by state officials or the Justice Department,” considering only Congress, not the DOI, can “change the underlying statute.”

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