Potential Unlawful conduct regulated by Federal agencies: How are environmental laws enforced by the Federal agencies?

The estimated bird population of the United States is approximately 20 Billion birds in the fall.[1] The Fish and Wildlife Service estimates that from 970 to 976 million birds die in building collisions, 40 to 50 million die from communications towers, up to 174 million die from high tension lines, and 60 million are killed by cars. Domestic rural cats kill 39 million birds and pesticides account for another 72 million bird fatalities annually. Comparatively, 33,000 birds die from wind turbines annually.[2]

Within the Federal government the Fish and Wildlife Service (FWS) is charged with monitoring bird populations and enforcing the Migratory Bird Treaty Act (MBTA),[3] the Endangered Species Act (ESA),[4] the Bald and Golden Eagle Protection Act,[5] and the National Wildlife Refuge System Administration Act.[6]

The FWS interprets the National Environmental Policy Act of 1969 (NEPA) to require the Service to prepare Environmental Impact Statements and Environmental Assessments on proposed wind developments.[7] The requirement is triggered by the Services law enforcement duties under the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.[8]

The cumulative effect of legislation protects 836 species. Federal enforcement may seem strong on its face. Current policy states “while any ‘incidental, accidental or unintentional take’ of migratory birds is not permitted by the Service and is a criminal violation of the Bird Migratory Treaty Act, the Service attempts to work with those industries and individuals whose actions result in bird deaths, rather than pursuing criminal prosecution first.”[9] The reality of Fish and Wildlife Service enforcement efforts are quite different.

FWS readily admits that to date “No wind turbine operator has ever been prosecuted for killing birds.”[10] Current efforts to stem bird death are in the planning stages and are not expected to take effect until 2009.[11] The current political climate in Washington has prioritized industry over enforcement of the Migratory Birds Treaty Act.

Despite lack of enforcement the MBTA and the Bald and Golden Eagle Protection Act provide for significant strict liability sanctions for violations. Penalties under the Bald and Golden Eagle are up to 2 years imprisonment and $10,000, with sanctions doubled if the violator is an organization.[12] Violations of the MBTA can result in a $15,000 fine and 6 month imprisonment for a misdemeanor and 2 years and $250,000 fine for a felony offence.[13] Any developer must take such stiff penalties, despite lack of apparent enforcement seriously.

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[1] Migratory Bird Treaty Act, 16 U. S.C. §§703-712

[2] Migratory Bird Mortality: Many Human-Caused threats Afflict Our Bird Populations, Fish and Wildlife Service, http://birds.fws.gov, Washington, D.C. (2002)

[3] Id.

[4] The Endangered Species Act, 16 U.S.C. 1531-1544; (1973)

[5] Bald and Golden Eagle Protection Act, 16 U.S.C. §§668-668d

[6] The National Wildlife Refuge System Administration Act (16 U.S.C. 668dd

[7] Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from

Wind Turbines, Memorandum Ref: FWS/DFPA/BFA

Fish and Wildlife Service, Washington, D.C. May 13, 2003

[8] Migratory Bird Treaty Act, 16 U. S.C. §§703-712, and Bald and Golden Eagle Protection Act, 16 U.S.C. §§668-668d

[9] Migratory Bird Treaty Act, 16 U. S.C. §§703-712

[10] Off-the-record source within Fish and Wildlife Service, Law Enforcement Office.

[11] Fish and Wildlife Service, http://www.fws.gov/habitatconservation/wind.pdf

[12] Bald and Golden Eagle Protection Act, 16 U.S.C. §668(a)

[13] Migratory Bird Treaty Act, 16 U. S.C. §§703-712