A new threat to birds

Passenger pigeons used to be so abundant in North America that migrating flocks blocked out the sun. At one time, the continent was home to an estimated 5 billion of the birds. But by the early part of the 20th century, the number was zero.

For decades, the Interior Department and the U.S. Fish and Wildlife Service have used the law to protect migratory birds not only from hunting but from industrial and agricultural activities that pose a serious hazard.

But under Ryan Zinke, the Interior Department has announced a sharp change in how it interprets the law. It intends to excuse any bird deaths that result from accidents, no matter how large or preventable, and limit penalties to cases of deliberate killing. So if a company sprayed pesticides with the purpose of killing a lot of birds, it would be guilty. But if it sprayed the same pesticides to get rid of insects and killed a lot of birds in the process, it would be in the clear.

The department argues that it’s unfair to punish as crimes actions that have no criminal intent. And in theory, people could unjustly go to jail for harm to birds that they didn’t mean to bring about and couldn’t foresee.

Power lines, wind turbines, vehicles and skyscrapers kill millions of birds each year, and prosecutions are rare, because the FWS understands that most of these deaths are essentially unavoidable. Its object is to prevent those that can be prevented.

That approach has saved untold numbers of migratory birds, without preventing the expansion of oil and gas output, the proliferation of wind farms or the production of food and fiber. The new policy is a solution in search of a problem.