Industry Gets A Pass On Accidental Bird Deaths

Jan 25, 2018

This year, the Migratory Bird Treaty Act turns 100. It protects more than 1,000 species of birds from a host of threats, including disruption of nesting sites and illegal trade. 

Until recently, power companies and other industries could be held responsible for egregious bird mortality through the Migratory Bird Treaty Act. In 2013, BP pleaded guilty to a misdemeanor count of violating the act as a result of the Deepwater Horizon oil spill. But in December, the Department of the Interior announced that companies which “take” or kill birds accidentally will no longer be prosecuted under the act. A legal memo from the department explaining the decision said that the threat of fines or even possible jail time could inhibit businesses from doing their work. Many environmentalists and bird advocacy organizations have denounced the decision, including 17 former directors and high level appointees of the U.S. Fish and Wildlife Service. The Allegheny Front’s Kara Holsopple spoke with Jim Bonner, Executive Director of the Audubon Society of Western Pennsylvania about it.

Kara Holsopple: How many birds are killed each year by wind turbines, power lines and other industry?

Jim Bonner: Bird mortality falls into a lot of different categories. Collisions with anything are one of the highest. According to U.S. Fish and Wildlife statistics from 2016, they estimate that collisions with buildings on average are about 300 million, with vehicles about 200 million, electric power lines, about 25 million, communication towers about six to seven million, oil pits…about three quarters of a million and wind turbines that about 200,000.

KH: So it sounds like buildings are a bigger problem than industry like the wind industry or communications towers.

JB: Well certainly bird deaths of any type are undesirable, but you look at the things that are more preventable, and that does fall into collisions with buildings and windows. There are things can be done to minimize that. But a number of the industrial ones are also things that are preventable. Over the years…the oil pits were discovered to be a problem. And you would create netting or other material over it so they(deaths) could be minimized. Same thing with wind turbines. As they started to become more common, taking a closer look at the speed at which they spin, and the time of day in which they’re operating, particularly for migratory birds. Most of the smaller songbirds migrate at night, flying long distances during the evenings and usually flying at relatively low heights. So as they are flying by, if there are active turbines running during peak migration, they pose a much greater risk. And so many sites are looking at radar data. You can actually see when large numbers of birds are coming through at certain times to be able to shut down or alter the turbines in some way to minimize the deaths.

KH: The Trump administration has decided that the Migratory Bird Treaty Act no longer applies to incidental killing of birds, and they’re not going to prosecute businesses that accidentally kill migratory birds. What kind of message does this send?

JB: Well, I think their interpretation is turning back a hundred years worth of precedent. You have to look at the history(of) where it came from. One hundred years ago it was the millinery trade that had been really threatening a number of birds such as the great egret. There was a time when collecting bird eggs and just displaying those was very popular. The only way to ensure protection was to have a blanket protection, and the Migratory Bird Treaty Act is very explicit in stating, ‘here is a list of things you cannot do.’ And by making it a blanket protection, you do not have to look each time and say, “Oh, this was the intent or this is what was happening.” Now when it gets to prosecution, they’re not going to go arbitrarily after Mr. and Mrs. Jones for helping an injured bird. But they are going to look at things that are repeated, that are large, that are part of a pattern. That can help protect birds, because birds, where they thrive, people do as well. The old adage of a canary in the coal mine is as important today as it always has been. We look at them as indicators of what’s going on around us. And so the more that we’re able to protect them and keep them safe, the better it’s going to be for us.

KH: When someone is collecting bird eggs or collecting birds, that is intentional. For the Trump administration and others who are interpreting this act, “incidental” means that you’re not doing it on purpose, but your actions result in the death of birds.

JB: And that is a very interesting point of law, determining what is intentional. There are many things that we do that we may not expect or intend something to go wrong, but it can. You don’t expect to get into a car accident just because you’ve gone out and had drinks, but if you are drinking and driving and you get into an accident, yes, you’re responsible for what happened. It’s the same thing if you’re spreading a large amount of chemicals, and say I wasn’t expecting birds to ingest this. Or if you were leaving exposed areas at a known migratory route, and birds died from it, you could say, “Yes, I wasn’t intending that to happen,” but you should have had a reasonable expectation that it could, that it had in the past, and that you’d be responsible if it did again.

KH: So what impact decision have for holding companies accountable or just for prevention?

JB: Well the impact, I don’t think we’ll know yet what will happen, but it will remove from the arsenal of prosecutors or enforcement agencies a tremendous number of resources. I think what needs to be looked at is, again, the history of this is it has always been used as a way to adapt and create best practices as each new industry has come on. And if it’s posed a risk to migratory birds, there’s been approaches and adoptions made to minimize those. Again using open oil pits as an example. When that was identified and looked at and prosecuted in the past, you know adding nets to it, covering them, using enclosed ones became the norm. Same thing with wind turbines. There have been prosecutions of turbine problems, and that’s resulted in much better science around the siting of them, the orientation, the management of them. So it’s an adaptive management process, but it has to start somewhere. Saying that it shouldn’t exist means you’ll never get to a good place.

KH: What would you or the Audubon Society like to see happen going forward?

JB: We’d like to see a return to what has been a hundred years of enforcement, of looking at it as a tool to help birds. There has to be a balance of things. At this time, where there seems to be a concern over overregulation….recently talking with some people and using an example, it’s kind of like going to your doctor, and he says, “Hey Jim, you’re your weight is down and your blood pressure is good. You can go back and start smoking, again.” You would never say something like that. That’s kind of a ridiculous scenario. It seems to be the concern right now in this current administration that any regulation is bad. When regulation actually helps drive improvements.

KH: Which birds does this affect?

JB: Everything from a hummingbird up to a bald eagle. It covers over a thousand species. These are native birds to the countries that are involved. They are typically birds that migrate, whether that’s across state lines or international lines. There are exceptions that are made for hunting. There are exceptions made for non-native species, such as the European starling or the English house sparrow, and some other introduced species are not included in it. So basically most of the birds that you might see in your backyard.