Every year billions of migratory birds are killed in America colliding with glass buildings, vehicles, communications towers, and more. The Migratory Bird Treaty Act (MBTA), passed in 1918, has protected birds by limiting hunting and trading practices.
Under previous administrations the Interior Department expanded the scope of the Act by ruling that companies and individuals could be held liable for unintentional avicide. Now the Interior Department has announced it would only prosecute intentional bird-killing, keeping to the historical spirit of the MBTA.
Former Interior bureaucrats and journalists at the Washington Post, among others, have criticized the new approach as regulatory abdication and callous profit-seeking. This narrative does not sufficiently account for the drawbacks of regulatory leviathans.
The maximum penalty of $15,000 for every dead bird is an arbitrary and excessive sum. Further, a vague regulatory guidance threatens individuals participating in otherwise lawful activity. In addition, the old approach to the MBTA has necessitated punitive amplification that does not add further motivation to prevent bird deaths.
The mere possibility of litigation cautions against productive economic activity. What constitutes an unintentional bird-killing, or who exactly is at fault when birds do not have the mental faculties of humans? Even the former Interior officials who are critical of Interior Secretary Ryan Zinke acknowledge that “reasonable people can disagree about the extent to which prosecutions under the MBTA are appropriate…”
One claim levied by the former officials is that the new interpretation of the MBTA creates a loophole for companies to engage in practices that inevitably harm birds, creatures that often mistake oil for water. But in the same letter to Secretary Zinke, former officials report that they have been successful in working with companies to reduce bird deaths with practical measures such as netting over oil pits. This could have been accomplished with specific regulations rather than ill-defined rules about incidental killings.
Maintaining an expansive interpretation of the MBTA props the door open for all kinds of lawsuits, which, if taken to the logical extreme, could include most human activity. A federal judge cited this problem in 2012 when he dismissed a case against three oil companies, saying that the MBTA was too vague to justify the charges of bird-killing made against them.
The selective attention paid to some instances of bird-deaths, as well as the high fines, are disproportionate. Neither do they appreciably increase the incentives to avoid harmful events such as oil spills. About one million birds died after the 2010 BP Deepwater Horizon spill, the worst offshore oil spill in history. Those responsible for two oil spills, including BP, have paid 97 percent of the fines charged under the MBTA.
According to a report from the House Oversight Committee, the U.S. Fish and Wildlife Service collected $64 million in MBTA-related fines from BP and other companies after the Deepwater Horizon oil spill. A small utility company was also fined and put on probation in 2013 after it was discovered birds were colliding with its wind turbines and dying. Data prior to 2010 are not readily available at the Department of the Interior, according to administrator Abby Miller.
However, the bird deaths from Deepwater Horizon pale in comparison to the U.S. Fish and Wildlife Service’s estimate of 1.85 billion annual bird-killings by cats. Cat owners are not prosecuted.
Some may posit that adding stricter punishments may deter future crimes, including oil spills. However, the weight of evidence indicates the certainty of being caught is the most effective deterrent to illegal or harmful activity, and there is no hiding an oil spill. The legal costs required to prosecute companies for unintentional bird-deaths are not productive, and the penalties related to environmental damage and loss of human life are adequate.
Beyond oil spills, individual property owners will no longer be held liable for activities that incidentally kill birds, such as the destruction of a barn that has owls in it. Property owners already have an incentive to keep barn owls alive, because the owls are effective rodent hunters. Farmers even set up nesting boxes to attract them.
Just as important, what if property owners are not aware of the owls? Even if owners escape punitive action, the time and resources needed for their defense could be time-consuming and expensive. The Interior Department’s new guidance has sensibly kept that can of worms away from the judicial system.
The Interior Department has made a wise change. Bird deaths are regrettable, but regulators should keep rules consistent and follow the law.
Joshua Hardman is a contributor to Economics 21