The O⁠i⁠ly B⁠i⁠rd Ge⁠t⁠s ⁠t⁠he Whack

By: The James Madison Institute / October 6, 2011

The James Madison Institute


October 6, 2011

By Robert F. Sanchez, JMI Policy Director
An editorial in the Sept. 29 Wall Street Journal discusses what “one local commentator calls ‘the most absurd legal action taken by the government in the history of North Dakota.’” Was such an outburst justified? You be the judge.The story begins when several birds – including two mallard ducks and “one Say’s Phoebe of the tyrant flycatcher bird family,” perished – evidently after mistakenly landing in or near a lagoon that legally retains small amounts of oil waste to keep it from getting into nearby streams. When these feathered fatalities came to the attention of U.S. Attorney Timothy Purdon, a former defense attorney and trial lawyer whom President Obama appointed last year to be the federal prosecutor in North Dakota, he flew into action.Several oil companies were charged in federal court with violating a rarely enforced 1918 law. That statute, the Migratory Bird Treaty Act, a product of the “progressive era” in U.S. politics, was enacted when the nation was still mourning the sad death in captivity of the last passenger pigeon. That bird’s demise in 1914 had marked the extinction of a species whose North American population was once estimated at five billion.Even so, there is no evidence that the demise of the 28 birds cited in this federal prosecution is a harbinger of another mass extinction. Moreover, The Journal notes that these birds’ deaths were actually reported to the U.S. Fish and Wildlife Service by one of the oil companies now being hauled into court and facing potential fines of $15,000 per bird – not to mention as much as six months in federal prison if blame can be pinned on an individual.For these producers of petroleum, the carbon-based energy source that keeps our economy moving despite environmental zealots’ efforts to bring growth to a screeching halt, it’s unfortunate that they don’t produce a form of energy currently favored by the federal government whose prosecutor is harassing them.Specifically wind energy, whose producers’ turbines have been nicknamed “bird blenders” because they cause the deaths of so many migratory fowl. As The Journal’s editorial notes, “the wind industry each year kills not 28 birds, or even a few hundred, but some 440,000, according to estimates by the American Bird Conservancy based on Fish and Wildlife service data.” The Journal adds that “at the Altamont Pass Wind Resource Area Northern California, some 5,000 wind turbines each year kill scores of golden and bald eagles, which are highly protected under federal law. There have been no federal prosecutions….”Alas, The Journal notes that scarcely a peep or squawk of protest has been heard from environmentalists concerning the wind turbines’ role in killing hundreds of thousands of birds– even bald eagles, the noble raptor that thankfully edged out the turkey as our national bird despite Ben Franklin’s arguments in favor of the fowl that later became Americans’ favorite Thanksgiving dinner entrée. Indeed, The Journal notes that some environmental groups are even supporting the wind industry’s efforts to secure “a formal legal waiver to shield it from the type of criminal or civil action that the oil companies now face.”The Journal concludes that “It’s hard to believe anyone deserves prosecution for incidental bird deaths, but it is a blatant injustice to indict companies whose oil operations may kill a few birds while giving a pass to wind operators that kill them by the thousands. The Administration can loathe carbon fuels all it wants, but that loathing doesn’t justify selective and foolish prosecution.”    All of which suggests that as long as the Obama Administration remains in power and intent on pandering to the environmental zealots within its political base, that sage observer of society, Kermit the Frog, errs when he claims “it’s not easy being green.” Evidently being “green” and courting the favor of the federal government is now the easy course of action. What won’t be easy as long as President Obama remains in the White House — and crony capitalism continues to advance — is trying to keep America’s market-based economy from meeting the sad fate of the passenger pigeon: extinction.