Zinke to Migratory Birds: Drop Dead

By Steve Chapman

September 13, 2018 6 min read

On April 20, 2010, an explosion on the Deepwater Horizon drilling rig in the Gulf of Mexico killed 11 workers and unleashed the biggest oil spill in history. Soaked in stinking goo, a million birds also perished — quadruple the toll from the infamous 1989 Exxon Valdez disaster in Alaska.

For the humans killed in the Deepwater Horizon accident, BP pleaded guilty to 11 felonies and paid $4 billion. The deceased birds cost it $100 million, money that was used to restore wetlands and conserve other bird habitats.

For the latter penalty, we can thank the Migratory Bird Treaty Act of 1918, which makes it illegal to kill migratory birds "by any means or in any manner" without a permit. That BP, in its carelessness, didn't intend to wipe out a million birds was irrelevant. Indiscriminate slaughter is forbidden even if it was not specifically intended.

Americans love birds, but we used to massacre them on a scale that is hard to believe. Once so abundant that their passing flocks blotted out the sun, passenger pigeons were hunted to extinction. That shocking experience helped inspire the treaty to protect migratory birds, which is virtually all birds. Now sport hunting is limited to a few types (notably ducks, geese and doves) under strict regulations.

There's no longer a danger of mass slaughter by hunters. But birds face a greater threat. Under the Trump administration's new policy, companies that engage in activities that are likely to kill even large numbers of birds can rest easy. Under this novel interpretation, the law applies only to "affirmative and purposeful actions, such as hunting and poaching," that kill or capture birds.

Had this policy been in effect in 2010, BP might well have escaped responsibility for the destruction caused by its mistakes, which a presidential commission blamed on "systematic failures in risk management."

Under the new reading, promulgated under Interior Secretary Ryan Zinke, a corporation could blithely employ practices that kill migratory birds by the million — as long as the deaths were a consequence of recklessness, carelessness or callous indifference. It's a bit like saying drivers should be excused from running over any pedestrians they didn't set out to run over.

An example offered by the department makes this clear. If you level a barn in the full knowledge that it's home to numerous owl nests, the pile of dead owls won't get you in trouble. Says Interior, "All that is relevant is that the landowner undertook an action that did not have the killing of barn owls as its purpose" (my emphasis).

Relevant to Zinke, that is — not the owls. As long as the barn owner has — or at least claims — some other intent, he bears no guilt for the bloodshed.

The overall danger to owls and other birds from barn demolition, of course, is limited. It's large-scale industrial activities that pose a much greater risk.

Birds often mistake open pits of waste in oil fields for bodies of water, with fatal results. That trap can be easily eliminated if the owner covers the pit with netting — as the previous policy required and the new one doesn't. Wind turbine owners no longer have to design or locate their equipment to minimize the harm to feathered flyers.

What part of "by any means or in any manner" does Zinke not understand? The previous policy was a clear and faithful application of the law and the treaty that it serves to enforce. Eight state attorneys general have filed a lawsuit to resurrect the old policy, which they argued "incentivized reasonable, low-cost measures to avoid, minimize and mitigate harm to these birds."

Seventeen former senior Interior Department officials, from both Republican and Democratic administrations, agree. The new rule, they said in a letter to Zinke, establishes a "contrived legal standard that creates a huge loophole in the MBTA, allowing companies to engage in activities that routinely kill migratory birds."

The previous policy, they contend, served to "reduce gross negligence by companies that simply do not recognize the value of birds to society or the practical means to minimize harm." And it was enforced in a common-sense manner that balanced "the goal of economic progress with the impact of that progress on bird populations."

The fact that the law had been applied for decades in a way that protected migratory birds without unduly burdening industry, however, did not prevent Zinke from upending it. In his Interior Department, common sense has taken flight.


Photo credit: at Pixabay

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