Authors

Erika Bosack

Incidental Take Under the Migratory Bird Treaty Act and How to Share the Skies

Abstract

This Note will focus on one piece of legislation that can protect birds from wind turbines: the Migratory Bird Treaty Act of 1918 (“MBTA” or “the Act”). The MBTA makes it illegal to hunt, kill, capture, import, export, sell, buy, pursue, possess, transport, or take a bird on the list of protected species, which covers hundreds of types of birds as well as their nests and eggs. The law forbids these acts in any manner, by any means, and at any time. The text itself does not explicitly state whether intentional and unintentional acts should both carry liability, which has caused stark discrepancies between judicial circuits that cannot logically coexist. One interpretation must eventually win the day. The one that will promote biodiversity conservation and provide more certainty to facilitate renewable energy development is also the one that most aligns with the statute’s plain text: that the MBTA covers unintentional takings.

This abstract has been taken from the author's introduction.

Repository Citation

Erika Bosack, Incidental Take Under the Migratory Bird Treaty Act and How to Share the Skies, 46 Wm. & Mary Env’t. L. & Pol'y Rev. 833 (2022), https://scholarship.law.wm.edu/wmelpr/vol46/iss3/9