New Bird-Kill Regulation Gets Companies Off The Hook

Long-standing federal legislation that criminalizes the killing of birds by industrial activities (such as pesticide application, oil and gas production, or wind power generation) has been significantly weakened by an Opinion from the office of the Department of Interior’s solicitor. The Opinion, explains an environmental alert from Aiken Gump, states that “incidental” fatalities that are not the purpose of an action, “even if they are direct and foreseeable results, are no longer subject to potential criminal prosecution.” This position reverses an interpretation from the Obama Interior Department, and it has incensed conservationist critics, including an official from the Audubon Society who maintains it contradicts a hundred years of conservation legacy and was a Christmas gift for bird killers. According to the law firm post, it will provide welcome relief to companies that “unavoidably kill migratory birds, sometimes even after efforts to mitigate take and to comply with industry best practices or FWS [the U.S. Fish and Wildlife Service] voluntary guidelines.”