Passenger pigeons used to be so abundant in North America that migrating flocks blocked out the sun. At one time, the continent was home to an estimated 5 billion of the birds. But by the early part of the 20th century, the number was zero. Human predation had brought about their extinction.
In 1916, Canada and the United States tried to avert such outcomes by entering into the Migratory Bird Treaty. It had the goal of ensuring “the preservation of such migratory birds as are either useful to man or are harmless.” Two years later, Congress acted to enforce it with the Migratory Bird Treaty Act, making it illegal to “pursue, hunt, take, capture, kill, attempt to take, capture or kill” them “by any means whatever.” More than 1,000 species of birds are covered.
For decades, the Interior Department and the U.S. Fish and Wildlife Service have used the law to protect migratory birds not only from hunting but from industrial and agricultural activities that pose a serious hazard. They have endeavored to balance the need to produce oil and grow crops with the obligation to conserve avian wildlife.
The law comes into play most conspicuously after major oil spills that wreak havoc on the environment. After the massive 2010 Deepwater Horizon blowout in the Gulf of Mexico, an estimated 1 million migratory birds died, and BP paid a fine of $100 million. The potential penalties serve as a strong incentive for businesses to take reasonable measures to avoid killing these wild creatures.
But under Ryan Zinke, the Interior Department has announced a sharp change in how it interprets the law. It intends to excuse any bird deaths that result from accidents, no matter how large or preventable, and limit penalties to cases of deliberate killing.
The department argues that it’s unfair to punish as crimes actions that have no criminal intent. And in theory, people could unjustly go to jail for harm to birds that they didn’t mean to bring about and couldn’t foresee.
But this is one of those instances where, as Justice Oliver Wendell Holmes put it, “a page of history is worth a volume of logic.” The law has been interpreted and applied in a spirit of common sense, under the scrutiny of federal courts, and it has allowed private enterprise to operate without undue hassle.
Power lines, wind turbines, vehicles and skyscrapers kill millions of birds each year, and prosecutions are rare, because the FWS understands that most of these deaths are essentially unavoidable. Its object is to prevent those that can be prevented.
For example: Birds can be attracted to oil waste pits, which resemble ponds, with fatal consequences. So companies are obligated to cover the sites with nets or put waste in closed containers. The shift has saved at least half a million birds each year.
In January, 17 former high officials in the Interior Department and Fish and Wildlife Service signed a letter opposing the new policy, which they say “creates a huge loophole” in the law.
“The MBTA can and has been used to reduce gross negligence by companies that simply do not recognize the value of birds to society or the practical means to minimize harm,” they argue. “It has never been the goal to entirely eliminate the unintentional killing of birds, but when we find techniques and technologies that can be used at reasonable cost to protect bird populations, we had a responsibility to do so.”
That approach has saved untold numbers of migratory birds, without preventing the expansion of oil and gas output, the proliferation of wind farms or the production of food and fiber. The new policy is a solution in search of a problem.
— Chicago Tribune