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Public Statements

Evenhanded Law Enforcement

Floor Speech

Location: Washington, DC


Mr. VITTER. Thank you, Madam President.

Through the Chair, I also wish to thank my distinguished colleague from Tennessee for joining me. Together, as he mentioned, we are writing the Attorney General today about a matter of real concern, and that is why we come to the floor. We are both very troubled by recent reports that the Department of Justice is targeting whom to prosecute for the incidental killing of migratory birds under the Migratory Bird Treaty Act. They are not targeting whom to prosecute by looking at birds killed; they are targeting whom to prosecute based on the type of business these various people are in--legal business--and, in particular, the type of legal energy these companies produce.

What am I talking about? Well, on the one hand, oil and gas producers--traditional energy producers--are clearly being targeted. They are being targeted for prosecution, as I say, under the Migratory Bird Treaty Act. They are being charged with the incidental killing--in a particular case that a court has dealt with--with the killing of four mallards, one northern pintail, one redneck duck, and one Say's phoebe.

Now, in that case, the Federal judge involved correctly recognized that this prosecution was off-base because it wasn't about trying to kill these birds--it wasn't about any willful act. It was about a completely incidental killing of these birds because they were doing things in the normal course of business. Nobody wants any of these birds to be killed, but that is not what criminal sanctions under the Migratory Bird Treaty Act are about.

As the judge said, ``then many everyday activities [would] become unlawful--and subject to sanctions--'' with ``fines'' under these sorts of prosecutions.

The judge pointed out that ``ordinary activities such as driving a vehicle, owning a building with windows, or owning a cat'' could be subject to criminal prosecutions if this precedent were set.

So that is on the one hand: the Department of Justice, I think, clearly targeting these companies who are oil and gas producers. On the other hand, they have a very different approach to other types of energy producers, such as wind producers. To our knowledge, there is not a single Department of Justice prosecution regarding the killing of birds because of windmills. That clearly happens. In fact, it happens a lot. I am not saying these wind producers want that to happen. I am not saying they are trying to kill birds, but it happens and it happens a lot. And to our knowledge, the Department of Justice has never launched a similar prosecution against a wind farm.

The U.S. Fish and Wildlife Service's fiscal year 2013 budget justification actually estimated the annual bird mortality from wind energy production. Do my colleagues know what the estimate was? It was 440,000. I just mentioned this criminal prosecution on the oil and gas side for seven birds. On that side, total, we have this estimate of 440,000.

But wait; it gets even more ridiculous. It appears the administration is also choosing to sanction this in the case of wind production because they are actually considering granting permits to wind energy producers who state in their permits they will kill bald eagles. So in southeastern Minnesota the administration is considering a permit for a wind farm that states in its permit it has the potential to kill between 8 and 15 bald eagles each and every year.

So on the one hand we have an oil and gas producer who is gone after with a criminal prosecution because they didn't intend but incidentally killed seven birds--of course, none of them the status of a bald eagle, none of them in danger. On the other hand, the administration is considering granting a permit where the wind producer says it is going to probably kill 8 to 15 bald eagles a year, the symbol of our Nation's greatness.

It is pretty clear to us that what this is about is not evenhanded enforcement of the law. What this is about is targeting one type of energy producer and favoring a different type of energy producer.

Here is a picture of a bald eagle. The wind farm has stated it will kill perhaps 8 to 12 of those a year. We also have photographs of birds that were unfortunately killed at a wind farm. This is one victim. We have another photograph of an eagle that was killed at a wind farm. This is not a bald eagle; this is a golden eagle, an absolutely beautiful bird.

All of these bird deaths are bad, but all of them are unintended. The point is that the Migratory Bird Treaty Act did not intend criminal prosecutions for this unintended incidental effect. The judge ruled that. We think the judge is right. But the broader concern is that the Justice Department seems to be targeting the companies it goes after not based on what they do with regard to migratory birds but based on what they do as a legal business and what sort of energy they produce.

Is this really a policy that reflects an ``all of the above'' energy strategy? We think not. We think it is pretty darn obvious it is not an ``all of the above'' approach. That is something very different than an ``all of the above'' energy strategy. It is strategy that says this sort of legal business, this sort of legal production of energy is evil and is to be gone after and combated in any way possible, and that sort of legal business, that sort of production of a different form of energy is to be favored in any way possible. That is our broader concern, and it is a pretty darn important one.

This is important in and of itself. It is an important part of the law. It is important that prosecutions be appropriate and evenhanded, but the broader issue with regard to a true ``all of the above'' energy strategy is even more important.

As I turn to my colleague from Tennessee, let me simply ask unanimous consent to have printed in the Record of the Senate this letter which we are both sending today to Attorney General Eric Holder.


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