Michael Bastasch, DCNF
President Donald Trump’s administration will reverse a former President Barack Obama-era decision to prosecute individuals and companies that unintentionally injure or kill protected birds, The Daily Caller News Foundation has learned.
Conservatives long criticized the Obama administration for selectively enforcing the Migratory Bird Treaty Act (MBTA) to the benefit of politically favored industries, like wind and solar power producers.
The Obama administration issued an opinion just before leaving office in Jan. 2017 that criminalized the accidental taking of migratory birds. The Trump administration will move to reverse this order and only go after intentional killing or “taking” of birds.
“This broad interpretation makes every American a potential criminal, from those who merely drive cars or own buildings with windows, to those who operate windmills or oil facilities,” reads a one-pager on the decision obtained by TheDCNF.
The Interior Department’s solicitor general will issue a legal opinion on Friday that “reverses this radical interpretation, providing greater regulatory certainty by returning to the MBTA to its proper limits: prohibiting actions that have as their purpose the taking or killing of migratory birds.”
The Obama administration largely ignored “takes” from solar and wind farms, however, the Jan. 2017 opinion left the door for all activities — hunting, solar, wind and oil and gas extraction — to face hefty fines. Interior officials temporarily withdrew the Jan. 2017 opinion earlier this year, but now it’s been formally replaced.
“This is a welcome change,” Christopher Mansour, the Solar Energy Industries of America’s vice president of federal affairs, told TheDCNF. “These are sensible reforms that provide much-needed clarity and regulatory certainty to solar developers.”
The nearly 100-year-old MBTA protects certain birds flying back and forth between the U.S. and other countries, including Canada and Russia. Congress passed the law in 1918 to prevent over-hunting of birds that cross international borders.
The Justice Department began prosecuting people for unintentionally “taking” birds in the 1970s. Courts have ruled both ways on the matter, but now the Trump administration will reverse the Obama-era decision, “which criminalized all actions that killed migratory birds, whether purposeful or not,” reads Interior’s one-pager.
Wind turbines kill hundreds of thousands of birds every year, and thermal solar plants in California have scorched hundreds more. These killings are unintentional, and represent a small percentage of accidental bird kills overall.
But while wind turbines and solar arrays killed migratory birds, the Obama administration exempted them from prosecution for years.
The Obama administration prosecuted more than 200 cases from 2009 to April 2013 involving the taking of protected birds and eagles, but never brought wind turbines to task, the Associated Press found.
Obama officials, however, did fine oil and gas companies for unintentionally killing birds. For example, ExxonMobil pleaded guilty in a 2009 federal court case to charges of killing 85 federally protected birds and agreed to pay $600,000 in fines and fees.
PacifiCorp was fined in 2009 for killing birds and paid $1.4 million in fines and restitution for the killing of 232 eagles in Wyoming that were electrocuted by power lines.
In fact the Obama administration didn’t prosecute wind power producers until Nov. 2013 for bird deaths at wind farms when they ordered a subsidiary of Duke Energy pay $1 million in fines.
The prosecution only came after pressure from environmentalists, though their satisfaction was short-lived because the Obama administration proposed allowing wind farms to get 30-year permits to “take” birds.
The American Bird Conservancy sued the Obama administration in 2014 for the policy change. The bird group said the new rule violates existing federal laws.
The American Wind Energy Association declined to comment.
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