Bird Take - Death Trade.

• Author: Lockman, Michael J.

1. INTRODUCTION II. THE ACT III. INCIDENTAL TAKE A. The Circuit Split 1. No Liability 2. Liability B. The FWS Proposals 1. No Action 2. General Conditional Permitting 3. Individual Permitting C. Demographics, Enforcement, and Criticism 1. Avian Mortality 2. The Futility of Enforcement 3. Critique of the Status Quo IV. THE BIRD TAX A. Potential Disadvantages 1. Environmental Uncertainty 2. Conservation Effectiveness 3. Practical and International Concerns B. The Advantages V. THE BIRD MARKET A. Capping B. The Bird Credit C. The Single Market D. Biodiversity Offset 1. Current Programs 2. Calculating Offset 3. Market Design 4. Incentivizing Offset E. Institutional Guidance F. Enforcement VI. CONCLUSION: DEATH DRIVE, CHARISMA, AND THE DWELLERS OF THE NEST I. INTRODUCTION

   Each year in the United States, humans kill around one billion birds. The causes are diverse: collisions with buildings, communication towers, wind turbines, airplanes, and vehicles; hunting and poaching; electrocution on power lines; drowning in oil pits; poisoning by pesticides; scalding by solar flux; incineration in gas flares. As of 2016, more than one-third of North American bird species have shown signs of mass decline. (1) Conservation efforts have been underway since the late 1800s: as Justice Holmes pointed out, bird conservation is a "national interest of very nearly the first magnitude." (2)

   The Migratory Bird Treaty Act (MBTA) protects 1,027 bird species--the vast majority of native birds in the United States and its territories--by criminalizing the taking, killing, or selling of any migratory bird or bird part. (3) Beginning in the 1960s, the Fish and Wildlife Service (FWS) began prosecuting industrial firms for "incidental take," the unintentional taking or killing of migratory birds. Incidental take is a negative externality of industry: firms kill birds--a natural resource shared by all--and do not compensate for their loss. A split in authority consequently arose on whether the strict liability misdemeanor of the MBTA criminalizes such unintentional killings. In response to concerns of incidental take, the FWS is now in a rulemaking process, by which it hopes to establish an incidental-take permit program, allowing firms to purchase take permits, compensate the FWS for estimated bird take, and evade or at least minimize the risk of prosecution.

   While the incidental-take circuit split has already received scholarly attention elsewhere, this Article tackles a larger conservation question, drawing on scholarship in the fields of emissions trading and conservation banking. This Article proposes two alternative market-based solutions to the menace of incidental take. First, the Bird Tax: a Pigouvian tax that seeks to correct the inefficient market outcome that results in uncompensated industrial and nonindustrial incidental take. Second, the North American Bird Market: a trilateral initiative building upon decades of successful environmental cooperation between Canada, the United States, and Mexico. By incentivizing clean energy, requiring industry to internalize its bird take, and promoting habitat restoration, the Bird Market is an efficient and clean theoretical solution to the menace of incidental take and the looming threat to our continent's shared birdscape.

   In contrast to a comprehensive, upstream Bird Tax that targets both industrial and nonindustrial incidental take, the Bird Market would entail potentially restrictive financial and logistical costs due to its limited focus on the regulation of industrial take. As such, it is possible that the Bird Market is a mere flight of fancy--a thought experiment whose doom radiates from its very core--and nothing more. Despite these challenges, this Article's presentation of the Market serves three other purposes. First, the Market serves as a vehicle to expose the sobering truth that the MBTA and incidental-take prosecutions are an expressive, but ultimately fruitless conservation mechanism. Second, the Market is an investigation of how to quantify and trade death with the goal of conserving life. Finally, the exposition of the Market and the critique of the MBTA is an attempt to tightrope walk the seemingly unbridgeable legal-analytical rift between the ritualized law and economics of Ronald Coase, (4) and the touchy-feely-throw-your-hands-up-in-the-air neorealism of Arthur Allan Leff. (5) Ultimately, because incidental industrial take is only a minor anthropogenic stressor, the Market will fail to achieve meaningful conservation goals for the same reasons that incidental-take prosecutions under the MBTA fail to achieve these goals. August 2016 marked the centennial of the first migratory bird treaty with Canada. One hundred years have passed, and this Article calls upon Congress to abandon its ancient conservation precepts and supplement our treaties and the MBTA with a meaningful international habitat-restoration program.

2. THE ACT

   Armed with the foolish assumption that our nation's wildlife resources were infinite, the hunters and trappers of the 19th century drove various native birds and mammals into extinction or near-extinction. (6) Beginning in the late 19th century, grassroots Audubon Clubs led the earliest conservationist efforts to protect our nation's wildlife, resulting in the Lacey Act of 1900, (7) which criminalized the interstate transportation of poached animals. (8) Bird populations nonetheless suffered rampant decreases due to habitat destruction and hunting. Congress responded to this plight by enacting the Weeks-McLean Migratory Bird Act in 1913, which criminalized the killing of any birds except in accordance with regulations promulgated by the Secretary of Agriculture. (9) However, this precursor to the MBTA was ruled unconstitutional by several district courts as a violation of Congress's commerce power. (10) Fearful that the Supreme Court would find the Act unconstitutional, conservationists aided by Senator Elihu Root lobbied President Woodrow Wilson to sign a treaty to strengthen the Act's constitutionality. (11) Accordingly, the President signed the Treaty between the United States and Great Britain (on behalf of Canada) for the protection of migratory birds. (12) The MBTA is the resulting implementing legislation, which the Supreme Court later found to be a constitutional exercise of the federal government's treaty power. (13) Over the course of the next six decades, the United States entered into three similar treaties to protect migratory birds: with Mexico in 1936, (14) with Japan in 1972, (15) and with the Soviet Union in 1976. (16)

   The MBTA protects 1,027 distinct bird species, (17) by criminalizing the taking or killing of protected birds with a variety of exceptions related to hunting, farming, and scientific research. (18) Currently, 8 percent of the species protected under the MBTA (seventy-four) are also listed as threatened or endangered under the Endangered Species Act (ESA), and an additional 25 percent are designated as Birds of Conservation Concern. (19) The MBTA defines both felony and misdemeanor violations. The felony provision criminalizes knowingly selling or bartering migratory birds. (20) In contrast, the misdemeanor penalty is a strict liability crime (21):

   "[I]t shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or in part, of any such bird or any part, nest, or egg thereof." (22)

   The statute further defines the prohibited act of "take" as "pursue, hunt, shoot, wound, kill, trap, capture, or collect." (23) The misdemeanor violation is punishable by a $15,000 fine, six-month imprisonment, or both. (24)

   On one of his last days in office, President Bill Clinton heralded a century of bird conservation by urging courts to recognize that the MBTA criminalizes incidental take, and by outlining enforcement priorities to meet treaty obligations. (25) To this end, he commanded agencies to monitor and promote research on bird habitat and populations. Agencies should "support the conservation intent of the migratory bird conventions by integrating bird conservation principles, measures, and practices into agency activities" and "restore and enhance the habitat of migratory birds, as practicable." (26) The Bird Tax and the Bird Market are conceived as an implementation of Clinton's vision: a market-based integration of conservation principles that would serve not only to reduce incidental take, but also restore and enhance bird habitat.

   Clinton described the value of birds, noting how they "bring tremendous enjoyment to millions of Americans who study, watch, feed, or hunt these birds." (27) While this is true, migratory birds bring far greater tangible benefits than mere enjoyment. In order to assess the benefits that migratory birds bring to humanity, one must distinguish between the benefits of a rich total bird population, and the benefits of species diversity, including the protection of endangered species.

   First, fundamental values are at stake in maintaining the total demographics of the overall migratory bird population. Beyond their role in the forty billion dollar birder market, (28) migratory birds are essential life-giving members of the continental ecosystem. They control pest insects by consuming 100,000 metric tons of invertebrates each day, saving billions of dollars in disease, pest, and insect mitigation costs. (29) Even one hundred years ago, Congress...