The Obama Administration's hostility to oil and gas exploration is well known, but last week it took an especially fowl turn. The U.S. Attorney for North Dakota hauled seven oil and natural gas companies into federal court for killing 28 migratory birds that were found dead near oil waste lagoons. You may not be surprised to learn that the Administration isn't prosecuting wind companies for similar offenses.
Continental Resources is accused of violating the 1918 Migratory Bird Treaty Act because "on or about May 6, 2011 in the District of North Dakota" the company "did take [kill] one Say's Phoebe," of the tyrant flycatcher bird family. Brigham Oil & Gas is accused of killing two Mallard ducks. The Class B misdemeanors carry fines of up to $15,000 for each dead bird and up to six months in prison.
The companies have pleaded not guilty, though they are not unamazed. They say they're not responsible for the bird deaths and that, even if they were, the deaths were "incidental" to lawful commercial activity in full compliance with all environmental laws.
Law enforcement officials we talked to in North Dakota say they can't remember such a case ever going to court. One local commentator calls it "the most absurd legal action taken by the government in the history of North Dakota." One of the charged oil companies "even went to U.S. Fish and Wildlife and self-reported a number of birds, asking what else they could do soon after they had found the dead birds," reports the Plains Daily, North Dakota's statewide newspaper.
U.S. Attorney Timothy Purdon is nonetheless undaunted as he pursues the cause of ornithological justice.
Absurdity aside, this prosecution is all the more remarkable because the wind industry each year kills not 28 birds, or even a few hundred, but some 440,000, according to estimates by the American Bird Conservancy based on Fish and Wildlife Service data. Guess how many legal actions the Obama Administration has brought against wind turbine operators under the Migratory Bird Treaty Act? As far as we can tell, it's zero.
At the Altamont Pass Wind Resource Area Northern California, some 5,000 wind turbines each year kill scores of golden and bald eagles, which are highly protected under federal law. There have been no federal prosecutions, though NextEra Energy Resources has agreed to purchase new turbines that are less likely to harm birds.
The wind industry is even seeking a formal legal waiver to shield it from the type of criminal or civil action that the oil companies now face. According to the September 13 draft of its new "Land-Based Wind Energy Guidelines," the U.S. Fish and Wildlife Service would give the wind industry "assurances" of law enforcement discretion if it adheres to certain safeguards and then inadvertently kills birds.
A few preservation groups have raised the issue of bird deaths from wind turbines, but the big green lobbying machines like the Sierra Club have largely been silent about their feathered former friends and the wind waiver. These groups deplore the externalities of producing carbon and nuclear power, but not the bird-death externalities associated with wind power.
It's hard to believe anyone deserves prosecution for incidental bird deaths, but it is a blatant injustice to indict companies whose oil operations may kill a few birds while giving a pass to wind operators that kill them by the thousands. The Administration can loathe carbon fuels all it wants, but that loathing doesn't justify selective and foolish prosecution.