William & Mary Environmental Law and Policy Review


The almost century-old Migratory Bird Treaty Act (“MBTA”) is straining to fulfill its statutory purpose of protecting migratory birds from the changing and growing threats of a modern industrial society. With approximately 600 million bird deaths per year from a host of anthropogenic activities and infrastructure, including alternative energy projects, oil and gas development, antennas, power lines and buildings, migratory bird populations are under stress that will increase significantly in the near future from a momentous growth in wind energy activity.

Since the 1970s, the Fish and Wildlife Service (“FWS”) has attempted to reconcile the MBTA’s conservation policy and strict liability taking prohibition, with the reality of growing bird deaths from taking incidental to industrial and other activities, and the lack of a broadly applicable program to permit incidental taking. To finesse a solution to this conundrum, the FWS has used its prosecutorial discretion to motivate compliance with various sets of voluntary conservation guidelines for certain industries, including wind energy, to reduce incidental taking and withhold prosecution of a cooperating party. The result has been the uneven enforcement of the MBTA’s prohibitions, legal uncertainty for potential violators, lack of universal compliance with the voluntary guidelines, and steadily escalating bird deaths.

The goal of this Article is to encourage a meaningful dialogue that addresses the problem of rapidly growing anthropogenic threats to migratory birds protected by the MBTA. Specifically, how can existing law, policy, and practice be reshaped to provide for greater conservation of protected avian species while accommodating anthropogenic activities that kill birds, but are a vital part of our modern industrial society? Using wind energy development as a unique opportunity to formulate and implement a widely applicable solution to this problem, this Article explores the background, issues, and possible solutions to this question in three parts.

In the Introduction, this Article examines the history of the MBTA, and the past and present anthropogenic threats to migratory birds, specifically including the growing hazard from wind energy development. Part I of this Article reviews the relevant statutory, judicial, and regulatory authority establishing the applicability of the MBTA to incidental taking. Part II discusses the failure of current FWS enforcement practice to adequately and consistently prosecute violations for incidental taking, and to provide for the long-term conservation of MBTA-protected species by imposing mandatory provisions to mitigate incidental taking from various activities including wind energy projects. In Part III, this Article proposes a broadly applicable program to permit incidental taking under the MBTA, authorized by regulation and implemented through industry or activityspecific guidelines starting with the wind energy industry. The Article concludes by exploring future implementation of the incidental take permit program to other activities and infrastructure that cause incidental taking.