Trump Administration Reverses Obama-Era
by Jennifer Dlouhy
The world's biggest wind companies push the envelope on turbine and project size.
The Trump administration, reversing an Obama-era policy, said it won't prosecute oil drillers, wind-farm developers and others who accidentally kill migratory birds.
The Interior Department said accidental deaths of those birds will no longer be considered a violation of a federal law meant to protect them, whether they are struck by a spinning wind turbine, vaporized by a solar array or sink in a drilling waste pond.
The change is a victory for energy companies and developers that worried about liability under the Obama administration's view of the Migratory Bird Treaty Act, which makes it illegal to "pursue, hunt, take, capture" or kill any migratory bird except with a valid permit. Under that century-old law, misdemeanors can be punished by as much as six months in prison and fines of up to $15,000.
The Obama administration issued a legal opinion in January concluding the law covers incidental as well as intentional takings of migratory birds.
That approach "hangs the sword of Damocles over a host of otherwise lawful and productive actions," the Interior Department's solicitor said in a memorandum that reversed that interpretation.
The Trump administration withdrew that opinion in February. The version that replaced it Friday asserts that intent matters -- and accidental migratory bird deaths don't violate the law.
"This commonsense approach ensures that lawful activities are not held hostage to unnecessary threats of criminalization," said Tim Charters, senior director of government affairs for the National Ocean Industries Association, which represents oil companies and wind developers working offshore.
Critics said the Obama-era policy left too much discretion in the hands of federal prosecutors, giving them the authority to aggressively pursue oil companies and land developers for bird deaths while taking a softer approach when birds die at wind farms and solar arrays.
"During the Obama administration, seven oil and natural gas companies were prosecuted for killing 28 birds at the same time that wind energy companies were allowed to kill thousands of birds, including bald and golden eagles," said Kathleen Sgamma, president of the Western Energy Alliance. "Today's solicitor's opinion returns the rule of law and will help prevent the disparate treatment of industries."
Conservationists blasted the move, saying it would discourage companies from taking precautions to safeguard birds, such as slowing wind turbines when they are nearby or covering waste pits.
"By acting to end industries' responsibility to avoid millions of gruesome bird deaths per year, the White House is parting ways with more than 100 years of conservation legacy," said David O'Neill, the chief conservation officer for the National Audubon Society.
The legal opinion doesn't change the underlying statute -- only Congress can do that -- so even unintentional bird deaths could still technically be prosecuted under the migratory bird law by state officials or the Justice Department. Still, it's a straightforward sign that the Interior Department's Fish and Wildlife Service won't prosecute accidental bird deaths by industry, said Collin O'Mara, president of the National Wildlife Federation.
The end result could actually be more uncertainty for industry.
"It's not optimal for wildlife, and it's not optimal for industry," O'Mara said.
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