Interior to let industry kill baby owls, as long as it’s “accidental”
By: Kirk Weinert
Tags: Environment, Oil And Gas Industry, Owls, Birds, Interior Department

Interior to let industry kill baby owls, as long as it’s “accidental”

The energy industry gets the ultimate “Get Out of Jail Free” card for killing millions of birds each year

(photo by: Kat Lovasi; license: CC BY 2.0)

Imagine you’re a wildlife ranger who’s uncovered a cold-blooded case of avian murder.

The perp has confessed to all the grisly details. He burned down his barn, despite knowing that some baby owls were nesting inside. He needed the space to put up a new oil rig, he explained. While it was too bad about the owls, it was his property and he was free to do whatever he wanted with it.

Now imagine taking the evidence to the prosecutor. “It’s a slam dunk case,” you say. “Big fines, maybe even some jail time.”

“Not so fast,” the attorney responds. “Was the perp’s main objective to knock off the birds?”

“No.”

“Were they under any special legal protection, like bald eagles?”

“Not that I know of. They were pretty ordinary, just looking for some shelter on their way through.”

“Well, then,” he explains. “I’m sure it was just an accident. Drop the case and tell the guy I hope he gets a gusher.”

* * * * *

That scenario may seem far-fetched. But it’s all too real, thanks to a directive from the Interior Department’s legal department in 2017, which the Trump administration recently announced it intends to turn into a formal regulation.

As a result, federal officials have already virtually stopped investigating bird deaths. Internal emails obtained by the Center for Investigative Reporting magazine reveal the consequences:

A citizen dropped off two coolers at the Fish and Wildlife office in Boise, Idaho, full of birds who had been killed after an oil pipeline burst and dumped diesel oil into a tributary of the Snake River. When the office staff asked how to follow up, they got an email from their superiors saying “due to the new solicitor’s opinion …… if these were mortalities incidental to an oil spill, there may be no need to hold the carcasses as there would be no need for an enforcement response.”

The “new solicitor’s opinion” reads:

“The take [killing] of birds resulting from an activity is not prohibited by the Migratory Bird Treaty Act when the underlying purpose of that activity is not to take birds,”

Grimly illustrating the rule, the guideline explains that a person who destroys a structure such as a barn, knowing that it is full of baby owls in nests, is not liable for their deaths. “All that is relevant is that the landowner undertook an action that did not have the killing of barn owls as its purpose.”

It used to be that, if someone killed a migrating bird, they could be prosecuted for negligence. As 17 former top officials in federal wildlife agencies, who served every U.S. president since Jimmy Carter, wrote to then-Interior Secretary Ryan Zinke, “take” has long meant “kill,” no ifs, ands, or buts.

For example, when the Deepwater Horizon oil spill killed hundreds of thousands of birds in 2010, BP paid $100 million for criminal violations of the act.

But, if a similar oil spill happened today, the Trump Administration would say, “that’s OK, since BP’s main objective wasn’t bird-killing.”

Talk about your get out-of-jail-free cards!

One of the main beneficiaries of the new rule is the energy industry.

The U.S. Fish and Wildlife Service has estimated that 500,000 to 1 million birds are killed annually in the United States after landing on fluid-filled waste pits at oil and gas production operations. Many more die by running into transmission lines.

Most of these deaths are preventable. For example, drillers can use closed containment systems, put nets over open pits, or eliminate pits entirely.

Some companies are doing the right thing. But preventative measures cost money that, all things being equal, many don’t want to pay.

Right now, there isn’t much hope that the Trump Administration will change course. The guideline from the Interior Department was a poke-in-the-eye to its former leaders and the tens of thousands of citizens who urged Secretary Zinke to oppose the proposal.

Our best bet now is to support the bipartisan Migratory Bird Protection Act (H.R.5222), which just passed the U.S. House Natural Resources Committee by a 20–14 margin. The bill would restore the previous interpretation of the law.

But that’s just a first step.

What’s needed in the long run is a solution to a conundrum worthy of Sherlock Holmes: The Case of the Skewed Priorities.

Right now, too many politicians and corporate leaders, regardless of their partisan persuasion, are getting away with blithely dismissing the mass killing of geese, robins and cormorants — and all other wildlife and wild places — as necessary collateral damage in a struggle to produce stuff we humans often don’t really need.

You and I can crack that case by giving a hand to the hamstrung cops on the environmental beat:

Send a public comment to the Fish & Wildlife Service, opposing turning its legal opinion into a formal regulation. (The deadline is March 19.)

Write to your member of Congress, urging support of H.R.5222, the Migratory Bird Protection Act.

A lot of baby owls will be eternally grateful for your help.