Letter to Attorney General Holder for a Clear Migratory Bird Policy from the Justice Department

Letter

Today Senator David Vitter (R-La.), the top Republican of the Committee on Environment and Public Works, and Senator Lamar Alexander (R-Tenn.) asked Attorney General Eric Holder to clarify the Department of Justice's (DOJ) policy for choosing who has violated the Migratory Bird Treaty Act, after observing an apparent bias toward pursuing cases involving oil and gas producers, and not wind energy producers.
"It appears the Justice Department is hand-picking which migratory bird mortality cases to pursue with an obvious preference of going after oil and gas producers," said Vitter. "For example, while three oil and gas companies are facing fines for killing birds, a wind energy company is applying for permits to kill up to fifteen bald eagles. We obviously don't want to see any indiscriminate killing of birds from any sort of energy production, yet the Justice Department's ridiculous inconsistencies begs questioning and clarity."

For example, DOJ penalized three oil and gas production companies for the incidental killing of migratory birds, while ignoring migratory bird deaths that have occurred as a result of wind energy production. The U.S. Fish and Wildlife Service estimated annual bird mortality from wind energy production to be approximately 440,000 in its fiscal year 2013 budget justification.

The letter shines a light on a recent event in which Federal officials have allowed a wind energy farm in southeastern Minnesota to apply for a permit to allow for the death of bald eagles, which has the potential to kill between eight and fifteen bald eagles each year.

Click here to watch Senator Vitter speak on the Floor

Vitter and Alexander are still awaiting answers from the Interior Department on their request for an economic and environmental analysis of offshore wind farms. In a November 2012 letter, the Senators ask for an analysis of the impact offshore wind turbines will have on birds. The text of their letter today to Attorney General Holder is below.

January 30, 2012

Attorney General Eric Holder
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Dear Attorney General Holder,

We write today seeking clarification of the Department of Justice's policy for prosecuting alleged violations of the Migratory Bird Treaty Act (MBTA). As you know, the MBTA is a criminal statute that makes it unlawful to "kill" or "take" a migratory bird, nest, or egg, except as permitted under the statute. We are concerned by what seems to be a trend of the Department pursuing MBTA enforcement actions against oil and gas companies for conduct that is otherwise overlooked when it is undertaken by renewable energy companies. Fair and consistent application of federal enforcement authority is fundamental to equal justice under the law as well as to the President's and Congress' call for an "all of the above" energy policy that pursues all forms of energy production.

On one hand, the Department of Justice chose to prosecute three oil and gas production companies for the incidental killing of migratory birds in North Dakota. In those cases, the companies were charged with the incidental killing of four mallards, one northern pintail, one red-necked duck, and a say's phoebe. By determining that the MBTA "only covers conduct directed against wildlife," a Court rejected your Department's claim that these producers had violated the MBTA.

The Court noted, and we agree, that "it is highly unlikely that Congress ever intended to impose criminal liability on acts or omissions of persons involved in lawful commercial activity, which may indirectly cause the death of birds protected by the Migratory Bird Treaty Act." Furthermore, the Judge reasoned that, if the Department's interpretation of the MBTA was adopted, "then many everyday activities [would] become unlawful- and subject to criminal sanctions- when they cause the death of pigeons, starlings, and other common birds. For example, ordinary land uses which may cause bird deaths include cutting brush and trees, and planting and harvesting crops. In addition, many ordinary activities such as driving a vehicle, owning a building with windows, or owning a cat, inevitably cause bird deaths."

On the other hand, you have not prosecuted a single wind producer for migratory bird deaths that occur as a result of wind energy production. The US Fish and Wildlife Service's fiscal year 2013 budget justification estimated annual bird mortality from wind energy production at approximately 440,000. This number suggests that a significant number of birds, some of which have additional protections under the Endangered Species Act, are harmed by wind turbines on wind farms.

We were recently made aware that Federal officials have decided to allow a wind energy farm in southeastern Minnesota to apply for a permit to allow for the death of bald eagles, who are obviously the symbol of the United States. If allowed to proceed, the project has the potential to kill between eight and fifteen bald eagles each year. We find it absurd that the Department of Justice, in conjunction with the Fish and Wildlife Service, could reasonably conclude that three oil and gas operators should face prosecution for the incidental killing of seven birds at the same time it considers permits to kill between eight and fifteen bald eagles. This does not pass the common-sense test, and suggests the Administration is hostile towards traditional energy production.

We do not condone the indiscriminate killing of birds from any sort of energy production. Nor do we believe the Department should target businesses because of the type of energy being produced. To that end, we seek to understand why your Department has chosen to selectively prosecute oil and gas producers at the same time the Administration considers granting permits that will result in the killing of bald eagles. In order to help us better understand and analyze your policy, please provide us with answers to the following questions:

1. In the past four years, how many criminal prosecutions has the Department undertaken against oil and gas producers who have allegedly violated the MBTA? Of those prosecutions, how many prosecutions involved a felony for a knowing MBTA violation and how many prosecutions have involved a misdemeanor prosecution?

2. In the past four years, how many criminal prosecutions has the Department undertaken against wind energy producers who have allegedly violated the MBTA? Of those prosecutions, how many prosecutions involved a felony for a knowing MBTA violation and how many prosecutions have involved a misdemeanor prosecution?

3. Last year, Stacey Mitchell, Chief of the Environmental Crimes Section, stated at a public conference that the Department brings prosecutions based on the willingness of a company to cooperate as opposed to the number of birds that are killed. Please provide us with any guidelines the Department considers when making the determination to prosecute an energy producer under the MBTA. Do your guidelines or any policy directives distinguish between oil and gas producers and wind energy producers?

4. Please explain the apparent targeting of oil and gas producers for violations under the MBTA. Do you believe it is inconsistent to prosecute energy producers for the deaths of seven animals among three producers at the same time the Administration condones an energy project that plans to kill between eight and fifteen bald eagles each year?

We hope that you will provide us a prompt response so that we can understand the Department's decision-making processes on this important issue. Should you have any questions, please feel free to contact us.

Sincerely,

David Vitter Lamar Alexander
Ranking Member United States Senate
U.S. Senate EPW Committee

CC: Secretary Ken Salazar, Department of the Interior

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