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3 Seattle J. Envtl. L. 1 (2013)

handle is hein.journals/sjel3 and id is 1 raw text is: The Prosecutor's Vulture: Inconsistent MBTA Prosecution, its Clash with Wind Farms, and How to Fix it Scott W. BrunnerT 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) esti- mates 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 crimi- nals, 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 un- der 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 twen- ty-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 in- cidentally killing birds while another industry-type gets afree pass? And regardless of that answer, why are wind-farms being allowed to develop and prosper despite posing increasingly grave threats to U.S. wildlfe? 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 agree- ments-with DPAs and NPAs-may be a temporary solution. Ulti- mately, the MBTA represents an unforeseen clash between clean T Associate Attorney, Meissner Tierney Fisher & Nichols, S.C., Milwaukee, Wis.; J.D., 2012, Marquette University Law School; B.A., 2009, University of Minnesota. 1

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