Bill would restore criminal sanctions for birds killed by oil operations

Oil and gas companies would once again face the risk of criminal prosecution for the unintentional killing of migratory birds if a bill moving through Congress becomes law.

The Migratory Bird Treaty Act of 2020 (H.R. 5552) was approved Jan. 15 by the House Natural Resources Committee on a party-line 20-14 vote. The vote suggests it can make it through the Democratic-majority House but would have trouble in the Republican-controlled Senate.

The bill would include general permits tailored for certain industrial activities, including oil and gas wastewater disposal pits and natural gas flares. A new regulatory system for those sectors would be due from the US Fish and Wildlife Service within 5 years of enactment of the legislation.

The new system would come with requirements for best practices or technologies, annual permit fees, mitigation fees, and record keeping requirements.

Rep. Alan Lowenthal (D-Calif.), stressed during Natural Resources Committee discussion Jan. 15 that companies would be exempt from criminal prosecution if they adhere to the regulations, even if birds are killed. But Republicans on the committee objected to a new array of regulations and fees and uncertain liabilities.

Under the Migratory Bird Treaty Act of 1918, it was for decades assumed that harm to birds could be criminally prosecuted even when unintentional. Such “incidental take,” in the jargon of the law, is rarely prosecuted thanks to the prosecutorial discretion allowed to government officials, but the possibility of prosecution has hung over oil companies.

But then Interior Department Solicitor Daniel Jorjani in December 2017 issued a legal opinion saying violations of the Migratory Bird Treaty Act can be treated as criminal only when intentional. The Lowenthal bill is designed to overturn that legal opinion.

Typically, it is the oily waste lagoons at drilling and production sites that have troubled regulators and others. Birds trying to land on ponds can land in oily waste instead, become mired and die. Companies commonly are obligated to cover the wastewater pits with netting as much as practical to keep birds out.

Oil and gas companies may have political allies in trying to deter or temper the legislation: wind farm operators and electric utilities. Wind turbines and electric transmission lines can kill birds, and the Lowenthal bill specifies those facilities along with oil and gas activities as mandatory targets for regulation.