By Jane West, Esq., Environmental Attorney
The Migratory Bird Treaty Act is not a heavily litigated piece of federal legislation, mostly because the courts have chiseled down the scope of the Act so narrowly that it rarely applies to indirect, unintentional commercial activity. But last week, an informative ruling emerged from a North Dakota federal court grappling with migratory birds that had died as a result of highly toxic reserve pits used by the Brigham Oil & Gas Company. The ruling is not so interesting in its ultimate outcome (the oil and gas company prevailed on a motion to dismiss) but rather some of the significant factual findings that were presented to the Court by the U.S. Fish & Wildlife Service who were the plaintiffs in the case. The U.S. Fish & Wildlife Service has published a summary of estimates on how many birds are killed each year by human-caused threats that the Court reiterated in its Order. These include the following:
“1. Collisions. Building window strikes may account for 97 to 976 million bird deaths each year. Communication towers conservatively kill 4 to 5 million birds annually (possibly closer to 40 to 50 million; a nationwide cumulative impacts study should help resolve this question). Strikes at high tension transmission and distribution power lines very conservatively kills tens of thousands of birds annually. Taking into account the millions of miles of bulk transmission and distribution lines in the U.S., and extrapolating from European studies, actual mortality could be as high as 174 million deaths annually. Electrocutions probably kill tens of thousands of birds but the problem is barely monitored. Cars may kill 60 million birds or more each year, private and commercial aircraft far fewer, while wind turbine rotors kill an estimated 33,000 birds annually.”
The U.S. Fish Wildlife Service report also noted that pesticides were estimated to result in the direct deaths of 72 million birds annually, oil spills can kills hundreds of thousands more and up to 2 million birds are killed annually in oil and wastewater pits – that was the source of bird kills in the instant case. In addition, cats are responsible for killing hundreds of millions of songbirds and other avian species each year. A recent study in Wisconsin estimated that in that state alone, domestic rural cats kill roughly 39 million birds annually. Lastly, the U.S. Fish & Wildlife Service noted that tens to thousands of seabirds are estimated to die in fisheries each year as a result of by-catch.
Bird kills are not a pleasant topic. No one, other than a hunter perhaps, wants to see a bird die. But neither do I want to see humans die. Right now, according to NOAA, air quality in the U.S. is so poor that it accounts for over 50,000 premature deaths per year. Human deaths. As an amateur birder myself and a mother of two small children, there is an intrinsic balancing act here. I think we can be confident that the the great majority of us who care about our environment and our future are most certainly in favor of developing renewable energy. Impacts from wind development proposed in the sugarcane fields of the Everglades Agricultural Area must absolutely be examined, but so too should the heavyweights of bird mortality that have an indelible presence in western Palm Beach County, such as high tension transmission and distribution power lines, communication towers and pesticides. Consistency with an eye on the big picture helps with the balancing that challenges us all.
