Court restores criminal sanctions for accidental killing of migratory birds
Oil companies must once again worry about criminal penalties for allowing migratory birds to die in oil waste ponds at well sites or refineries.
On the 11th August, a federal judge ruled that the Trump administration was wrong to assume that the prohibitions of the Migratory Bird Treaty Act (MBTA) apply only to intentional killing of birds, not to accidental avian deaths resulting from such things as normal business operations.
For oil companies, such accidental killings – or “incidental take,” in legal jargon – can occur when the companies fail to cover waste pits with netting to keep birds out. Oily waste can look like a water pond to a bird, which may land in oily waste, become mired and die.
In December 2017, the Interior Department’s principal deputy solicitor, Daniel Jorjani, issued a legal memorandum describing the MBTA as a law intended to prevent over-hunting of birds. In that interpretation, the 1918 law was about the deliberate killing of birds, whether by shooting, trapping, poisoning, or other means.
Judge Valerie Caproni of the US District Court for the Southern District of New York disagreed. She quoted the amended version of the law, which states that “unless and except as permitted by regulations…it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill…any migratory bird.”
The judge wrote, “Congress could have, but chose not to, limit the MBTA to activities like hunting which are directed at birds.” Instead, Congress used the term “kill” without a restrictive phrasing such as “deliberately kill.”
At least one appellate court has ruled that the law’s use of the word “take” is limited to intentional harm, but Judge Caproni said that even if one were to accept that ruling as controlling precedent, it does not address the law’s use of “kill.”
Much prosecutorial discretion
The court vacated the Jorjani memorandum. The ruling was in Natural Resources Defense Council vs US Department of the Interior and covered two other consolidated cases. The three cases together were a victory for six environmental and conservation groups and eight states.
It does not mean there will be an upsurge in criminal prosecutions. For decades, federal officials have exercised considerable prosecutorial discretion, rarely charging oil and gas companies – or electric utilities, or wind farm operators, or other companies – with MBTA violations.
Instead, the law has served as a legal tool to pressure companies to minimise bird deaths.
A recent summary by the US Fish and Wildlife Service on annual US bird mortality listed: 2.4 billion killed by cats; 599 million killed by collisions with building glass; 214.5 million killed by vehicles; 72 million killed by pesticides and other toxins; 25.5 million killed by collisions with electrical lines; 6.6 million killed by collisions with communications towers; 5.6 million electrocuted; 750,000 killed in oil pits; 234,000 killed by wind turbines.
Most US birds are migratory.
Source: Oil & Gas Journal