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
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.


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