U.S. industries are no longer liable for accidental bird deaths. At what cost?

Shortly after midnight on March 24, 1989, an oil tanker owned by Exxon Shipping Company slammed into a reef off the coast of Alaska. By the time the resulting spill was stemmed, enough crude oil to fill 125 Olympic-size swimming pools had gushed into the Prince William Sound, killing 250,000 seabirds. Two decades later, a drilling rig operated by British Petroleum (BP) exploded in the Gulf of Mexico, releasing at least 15 times more oil as the Exxon spill. More than a million birds died in the disaster, deemed the largest accidental oil spill in history.

For the 1989 spill, Exxon paid the United States government $100 million in criminal fines for injuries to fish, wildlife, and habitat, and $12 million to the North American Wetlands Conservation Fund. BP paid $100 million to the fund. These penalties were brought, in part, under one of the country’s oldest wildlife protection laws, the Migratory Bird Treaty Act (MBTA).

Since its passage 1918, the act has made it illegal to “pursue, hunt, take, capture, [or] kill...in any manner, any migratory bird” without permission.

If a calamity similar to the Exxon Valdez or BP oil spills were to occur today, however, the punishment for loss of birds would likely be much smaller—if there were any punishment at all.

On February 3, 2020, the U.S. Fish and Wildlife Service announced that it intends to adopt a rule holding that individuals and businesses will no longer be prosecuted under the Migratory Bird Treaty Act for the “incidental take”—or accidental killing—of migratory birds. If implemented, after a period of public comment, the rule will codify a December 2017 legal opinion from the Department of the Interior, which oversees the Fish and Wildlife Service, that came to the same conclusion.

This narrow interpretation of the act represents a drastic shift from how the federal government has approached avian conservation during the past 50 years. It has many conservationists worried that without government oversight there’s little incentive for businesses to minimize bird deaths.

“In most cases, especially if there's money involved, people are going to ignore the birds,” says Noah Greenwald, the Endangered Species Director at the Center for Biological Diversity, a nonprofit organization dedicated to protecting wildlife. “There might be instances where companies do the right thing, but that won't be the majority of cases.”

In the 1970s, U.S. prosecutors shifted the focus of enforcement of the Migratory Bird Treaty Act from errant hunters—who were largely responsible for the decline of birds when the law first went into effect in the early 20th century—to oil, gas, timber, mining, chemical, and electrical companies whose industrial activities were killing birds accidentally. Each year, between eight million and 57.3 million birds die colliding with electrical lines, and between 500,000 and a million birds die from swooping into oil pits, which they mistake for ponds, according to the Fish and Wildlife Service.

Industry leaders and associations argue that they shouldn’t be held responsible for accidental deaths and that they need more regulatory certainty to operate without fear of reprisal. In the 2017 legal opinion, the Department of the Interior agreed: “Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions.”

The Fish and Wildlife Service declined to make anyone available for an on-the-record interview. In a press release published January 30, Assistant Secretary for Fish and Wildlife and Parks Rob Wallace said that with the courts divided on how to interpret the Migratory Bird Treaty Act, “it is important to bring regulatory certainty to the public” and that the service will “continue to work collaboratively…to ensure that best practices are followed to minimize unintended harm to birds and their habitats.”

North America’s birds are in trouble. In October 2019, the National Audubon Society released a report suggesting that two-thirds of North America’s bird species will be vulnerable to extinction if Earth continues to warm according to current trends. The report followed an equally startling paper published in Science, which found that the continent’s bird population has shrunk by almost three billion breeding adult birds since 1970.

Climate change, habitat loss, pesticide usage, collisions with windows, and cats are among the largest causes of bird declines in the U.S., but accidental deaths from industrial activities are also significant, according to Fish and Wildlife Service estimates.

“It’s not like any single event has caused the decline or will in the future. But take the BP oil spill, which killed a million birds by itself. Because of the interpretation of the Migratory Bird Treaty Act, BP rightfully had to pay large fines,” says Kenneth Rosenberg, the lead author of the Science paper and a conservation scientist at the Cornell University Laboratory of Ornithology. “Without that system, that opens the door not only for corporations to not pay for damages but to not worry about it and not put safeguards in place. And at some point, it can have a larger effect on certain species.”

“We’re at a crossroads,” says Sarah Greenberger, Audubon’s senior vice president for conservation policy. “We know we need to do far more than we’ve been doing, and simultaneously the tools that we’ve used to protect birds to date are being taken away.”

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Heated battle?

While the debate over whether businesses should be held accountable for accidental bird deaths is often framed as an ongoing battle between industry and conservationists, the relationship was once cooperative, say former government officials.

Lynn Scarlett, who served as Deputy Secretary of the Interior from 2005 to 2009 under President George W. Bush, doesn’t remember receiving any industry complaints about how the law was applied during her tenure.

“For the most part, the [relationship with the] private sector was very constructive,” she says. “In particular, we had a lot of dialogue with the wind industry on how to avoid the accidental killing of birds.” (Read about changes the wind industry proposed in 2015 to reduce bat deaths.)

Daniel Ashe, who led the Fish and Wildlife Service from 2011 to 2017 under President Barack Obama, is even more insistent. He says that under his leadership, law enforcement would bring a violation against a company only after it had been warned they were likely killing birds.

“The idea that there was some kind of battlefield conflict between the service and industry over migratory bird conservation is just wrong,” he says. “[The MBTA] has been interpreted for decades as applying to the incidental take of migratory birds, and the service would enforce that in a very cooperative way.”

Captains of industry

Nonetheless, industry representatives have cheered the new interpretation of the Migratory Bird Treaty Act. The Fish and Wildlife Service’s press release heralding its intention not to prosecute accidental bird deaths quotes a number of government and industry representatives. Rich Nolan, the president and CEO of the National Mining Association, for example, writes, “The statute should be applied as intended: to protect against intentional killing of birds, not to criminalize a broad range of commercial activities causing a significant chilling effect on industry and commerce nationwide, including mining.”

Ashe, though, doesn’t accept such arguments. “I would ask them to show me where that chilling effect can be specifically documented,” he says. “Would it be in the outskirts of Las Vegas where one of the world’s largest solar facilities was permitted and has been operating for a decade? Is it in the prairies, where wind facilities have been growing exponentially? Or the oil and gas industry, which has prospered due to the fracking boom? There is no evidence that any of these industries have been chilled.”

Documents obtained through the Freedom of Information Act and provided to National Geographic by the Center for Biological Diversity show that there’s no longer an incentive for businesses to minimize harm to birds.

In Virginia, for instance, 25,000 sea birds recently lost their nesting site of 40 years when it was transformed into a staging area for the state’s most expensive construction project: the expansion of a bridge and tunnel that connect coastal cities with Norfolk Naval Base. In March 2018, Virginia had submitted a conservation assessment to USFWS that considered how migratory birds would be affected by the development.

In response, the service wrote it “appreciated” Virginia’s concern, but clarified that “continued conservation efforts for migratory birds by [The Virginia Department of Transportation] are purely voluntary.”

In December 2019, Virginia paved over the nesting area.

“Before this policy, [if they killed birds], they would have had to mitigate that. They would’ve had to pay fines and those fines would have helped with bird conservation,” says Greenwald, of the Center for Biological Diversity. “Now companies don’t even have to report bird deaths.”

Audubon’s Greenberger hopes that legislative and legal efforts will restore the wider interpretation of the Migratory Bird Treaty Act. On January 8^th, a bipartisan group of congresspeople introduced the Migratory Bird Protection Act to affirm that the MBTA includes protections against “incidental take by commercial activities.” In addition, eight states and several conservation groups, including Audubon and the Center for Biological Diversity, have filed federal lawsuits challenging the policy of ignoring accidental bird deaths.

Meanwhile, conservationists are pessimistic that companies will police themselves. Before the Fish and Wildlife Service began to prosecute accidental bird deaths under the Migratory Bird Treaty Act, “it was not standard practice for oil and gas companies to cover their oil waste pits, for utilities to string their lines wide enough so they weren’t a risk to eagles and hawks, or for communications companies to use blinking versus constantly shining lights on their towers,” Greenberger says. “Will people stop? We’re seeing them ask whether they can stop.”