Evenhanded Law Enforcementby Senator David Vitter
Posted on 2013-01-30
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.
[[Page S379]] 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.
There being no objection, the material was ordered to be printed in the Record, as follows: January 30, 2012.
Attorney General Eric Holder, U.S. Department of Justice, Pennsylvania Avenue, NW., Washington, DC.
Dear Attorney General Holder: We write today seeking clarification of the Department of Justice's policy for prosecuting alleged violations of the Migratory Bird Treaty Act (MBTA). As you know, the MBTA is a criminal statute that makes it unlawful to ``kill'' or ``take'' a migratory bird, nest, or egg, except as permitted under the statute. We are concerned by what seems to be a trend of the Department pursuing MBTA enforcement actions against oil and gas companies for conduct that is otherwise overlooked when it is undertaken by renewable energy companies. Fair and consistent application of federal enforcement authority is fundamental to equal justice under the law as well as to the President's and Congress' call for an ``all of the above'' energy policy that pursues all forms of energy production.
On one hand, the Department of Justice chose to prosecute three oil and gas production companies for the incidental killing of migratory birds in North Dakota. In those cases, the companies were charged with the incidental killing of four mallards, one northern pintail, one red-necked duck, and a say's phoebe. By determining that the MBTA ``only covers conduct directed against wildlife,'' a Court rejected your Department's claim that these producers had violated the MBTA.
The Court noted, and we agree, that ``it is highly unlikely that Congress ever intended to impose criminal liability on acts or omissions of persons involved in lawful commercial activity, which may indirectly cause the death of birds protected by the Migratory Bird Treaty Act.'' Furthermore, the Judge reasoned that, if the Department's interpretation of the MBTA was adopted, ``then many everyday activities [would] become unlawful--and subject to criminal sanctions-- when they cause the death of pigeons, starlings, and other common birds. For example, ordinary land uses which may cause bird deaths include cutting brush and trees, and planting and harvesting crops. In addition, many ordinary activities such as driving a vehicle, owning a building with windows, or owning a cat, inevitably cause bird deaths.'' On the other hand, you have not prosecuted a single wind producer for migratory bird deaths that occur as a result of wind energy production. The U.S. Fish and Wildlife Service's fiscal year 2013 budget justification estimated annual bird mortality from wind energy production at approximately 440,000. This number suggests that a significant number of birds, some of which have additional protections under the Endangered Species Act, are harmed by wind turbines on wind farms.
We were recently made aware that Federal officials have decided to allow a wind energy farm in southeastern Minnesota to apply for a permit to allow for the death of bald eagles, who are obviously the symbol of the United States. If allowed to proceed, the project has the potential to kill between eight and fifteen bald eagles each year. We find it absurd that the Department of Justice, in conjunction with the Fish and Wildlife Service, could reasonably conclude that three oil and gas operators should face prosecution for the incidental killing of seven birds at the same time it considers permits to kill between eight and fifteen bald eagles. This does not pass the common-sense test, and suggests the Administration is hostile towards traditional energy production.
We do not condone the indiscriminate killing of birds from any sort of energy production. Nor do we believe the Department should target businesses because of the type of energy being produced. To that end, we seek to understand why your Department has chosen to selectively prosecute oil and gas producers at the same time the Administration considers granting permits that will result in the killing of bald eagles. In order to help us better understand and analyze your policy, please provide us with answers to the following questions: 1. In the past four years, how many criminal prosecutions has the Department undertaken against oil and gas producers who have allegedly violated the MBTA? Of those prosecutions, how many prosecutions involved a felony for a knowing MBTA violation and how many prosecutions have involved a misdemeanor prosecution? 2. In the past four years, how many criminal prosecutions has the Department undertaken against wind energy producers who have allegedly violated the MBTA? Of those prosecutions, how many prosecutions involved a felony for a knowing MBTA violation and how many prosecutions have involved a misdemeanor prosecution? 3. Last year, Stacey Mitchell, Chief of the Environmental Crimes Section, stated at a public conference that the Department brings prosecutions based on the willingness of a company to cooperate as opposed to the number of birds that are killed. Please provide us with any guidelines the Department considers when making the determination to prosecute an energy producer under the MBTA. Do your guidelines or any policy directives distinguish between oil and gas producers and wind energy producers? 4. Please explain the apparent targeting of oil and gas producers for violations under the MBTA. Do you believe it is inconsistent to prosecute energy producers for the deaths of seven animals among three producers at the same time the Administration condones an energy project that plans to kill between eight and fifteen bald eagles each year? We hope that you will provide us a prompt response so that we can understand the Department's decision-making processes on this important issue. Should you have any questions, please feel free to contact us.
Sincerely, David Vitter, Ranking Member, U.S. Senate EPW Committee.
Lamar Alexander, United States Senate.
Mr. VITTER. Thank you, Madam President. With that I close and thank, again, my colleague from Tennessee.
The ACTING PRESIDENT pro tempore. The Senator from Tennessee.