U.S. wind-farm development has exploded in the last two decades. But so have birds—literally. Wind farms are incidentally causing deaths to migratory birds and at an increasing rate each year (the most recent United States Fish & Wildlife Service (USFWS) estimates suggest over 400,000 annually). As a result, the Migratory Bird Treaty Act (MBTA), a nearly 100-year-old U.S. environmental statute, potentially makes wind-farm operators white collar criminals, even if they were acting without intent.
Controversially, wind-farm operators are not being prosecuted for bird deaths, whereas other industry-types have been prosecuted under the MBTA and even convicted on certain occasions. Notable is the 2012 case United States v. Brigham Oil & Gas, where seven oil companies were federally prosecuted for causing a combined twenty-seven bird deaths. These seven companies survived prosecution in North Dakota federal court; however, in light of Brigham Oil and similar cases, the lack of wind-farm prosecution certainly begs the question: Why should some industry-types face prosecution for incidentally killing birds while another industry-type gets a free pass? And regardless of that answer, why are wind-farms being allowed to develop and prosper despite posing increasingly grave threats to U.S. wildlife?
This Article analyzes the lack of wind-farm prosecution, addresses the growing upheaval surrounding it, and argues that the century-old MBTA is due for an update. Alternatively, this Article puts forth that prosecutors’ approaches to MBTA prosecution are in dire need of rethinking: guidance pushing usage of prosecutorial agreements—with DPAs and NPAs—may be a temporary solution. Ultimately, the MBTA represents an unforeseen clash between clean energy and wildlife conservation. Past scholarship has focused on how the MBTA’s text encompasses wind-farm operators; this Article builds on that by identifying the most appropriate solutions to this conundrum. Reworked statutory language that invokes an incidental-take exception for all industry-types could set the MBTA back to its wildlife-conservation purpose while also ensuring fairer prosecutorial practices and keeping otherwise-innocent wind-farm operators from becoming white collar criminals.