[Congressional Record (Bound Edition), Volume 159 (2013), Part 1]
[Senate]
[Pages 774-777]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       EVENHANDED LAW ENFORCEMENT

  Mr. ALEXANDER. Madam President, I am expecting the Senator from 
Louisiana, whom I had planned to follow, but since he is not here yet I 
will go ahead with my remarks unless he walks in the door just now, and 
then he can follow me.
  We are both speaking today about selective enforcement of the law as 
it relates to the Department of Justice enforcing the law against 
certain types of energy producers but not other types of energy 
producers. Senator Vitter from Louisiana will talk about a letter he 
and I will be sending to the Attorney General of the United States 
asking why he does it.
  I see Senator Vitter coming in just now, so now that I have given him 
a preamble and a warm-up of about 2 minutes, I think I will sit down 
and listen to what he has to say, and then I will add my comments to 
his when he finishes.
  The ACTING PRESIDENT pro tempore. The Senator from Louisiana.
  Mr. VITTER. Thank you, Madam President.
  Through the Chair, I also wish to thank my distinguished colleague 
from Tennessee for joining me. Together, as he mentioned, we are 
writing the Attorney General today about a matter of real concern, and 
that is why we come to the floor. We are both very troubled by recent 
reports that the Department of Justice is targeting whom to prosecute 
for the incidental killing of migratory birds under the Migratory Bird 
Treaty Act. They are not targeting whom to prosecute by looking at 
birds killed; they are targeting whom to prosecute based on the type of 
business these various people are in--legal business--and, in 
particular, the type of legal energy these companies produce.
  What am I talking about? Well, on the one hand, oil and gas 
producers--traditional energy producers--are clearly being targeted. 
They are being targeted for prosecution, as I say, under the Migratory 
Bird Treaty Act. They are being charged with the incidental killing--in 
a particular case that a court has dealt with--with the killing of four 
mallards, one northern pintail, one redneck duck, and one Say's phoebe.
  Now, in that case, the Federal judge involved correctly recognized 
that this prosecution was off-base because it wasn't about trying to 
kill these birds--it wasn't about any willful act. It was about a 
completely incidental killing of these birds because they were doing 
things in the normal course of business. Nobody wants any of these 
birds to be killed, but that is not what criminal sanctions under the 
Migratory Bird Treaty Act are about.
  As the judge said, ``then many everyday activities [would] become 
unlawful--and subject to sanctions--'' with ``fines'' under these sorts 
of prosecutions.
  The judge pointed out that ``ordinary activities such as driving a 
vehicle, owning a building with windows, or owning a cat'' could be 
subject to criminal prosecutions if this precedent were set.
  So that is on the one hand: the Department of Justice, I think, 
clearly targeting these companies who are oil and gas producers. On the 
other hand, they have a very different approach to other types of 
energy producers, such as wind producers. To our knowledge, there is 
not a single Department of Justice prosecution regarding the killing of 
birds because of windmills. That clearly happens. In fact, it happens a 
lot. I am not saying these wind producers want that to happen. I am not 
saying they are trying to kill birds, but it happens and it happens a 
lot. And to our knowledge, the Department of Justice has never launched 
a similar prosecution against a wind farm.
  The U.S. Fish and Wildlife Service's fiscal year 2013 budget 
justification actually estimated the annual bird mortality from wind 
energy production. Do my colleagues know what the estimate was? It was 
440,000. I just mentioned this criminal prosecution on the oil and gas 
side for seven birds. On that side, total, we have this estimate of 
440,000.
  But wait; it gets even more ridiculous. It appears the administration 
is also choosing to sanction this in the case of wind production 
because they are actually considering granting permits to wind energy 
producers who state in their permits they will kill bald eagles. So in 
southeastern Minnesota the administration is considering a permit for a 
wind farm that states in its permit it has the potential to kill 
between 8 and 15 bald eagles each and every year.
  So on the one hand we have an oil and gas producer who is gone after 
with a criminal prosecution because they didn't intend but incidentally 
killed seven birds--of course, none of them the status of a bald eagle, 
none of them in danger. On the other hand, the administration is 
considering granting a permit where the wind producer says it is going 
to probably kill 8 to 15 bald eagles a year, the symbol of our Nation's 
greatness.
  It is pretty clear to us that what this is about is not evenhanded 
enforcement of the law. What this is about is targeting one type of 
energy producer and favoring a different type of energy producer.
  Here is a picture of a bald eagle. The wind farm has stated it will 
kill perhaps 8 to 12 of those a year. We also have photographs of birds 
that were unfortunately killed at a wind farm. This is one victim. We 
have another photograph of an eagle that was killed at a wind farm. 
This is not a bald eagle; this is a golden eagle, an absolutely 
beautiful bird.

[[Page 775]]

  All of these bird deaths are bad, but all of them are unintended. The 
point is that the Migratory Bird Treaty Act did not intend criminal 
prosecutions for this unintended incidental effect. The judge ruled 
that. We think the judge is right. But the broader concern is that the 
Justice Department seems to be targeting the companies it goes after 
not based on what they do with regard to migratory birds but based on 
what they do as a legal business and what sort of energy they produce.
  Is this really a policy that reflects an ``all of the above'' energy 
strategy? We think not. We think it is pretty darn obvious it is not an 
``all of the above'' approach. That is something very different than an 
``all of the above'' energy strategy. It is strategy that says this 
sort of legal business, this sort of legal production of energy is evil 
and is to be gone after and combated in any way possible, and that sort 
of legal business, that sort of production of a different form of 
energy is to be favored in any way possible. That is our broader 
concern, and it is a pretty darn important one.
  This is important in and of itself. It is an important part of the 
law. It is important that prosecutions be appropriate and evenhanded, 
but the broader issue with regard to a true ``all of the above'' energy 
strategy is even more important.
  As I turn to my colleague from Tennessee, let me simply ask unanimous 
consent to have printed in the Record of the Senate this letter which 
we are both sending today to Attorney General Eric Holder.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 January 30, 2012.
     Attorney General Eric Holder,
     U.S. Department of Justice, Pennsylvania Avenue NW., 
         Washington, DC.
       Dear Attorney General Holder: We write today seeking 
     clarification of the Department of Justice's policy for 
     prosecuting alleged violations of the Migratory Bird Treaty 
     Act (MBTA). As you know, the MBTA is a criminal statute that 
     makes it unlawful to ``kill'' or ``take'' a migratory bird, 
     nest, or egg, except as permitted under the statute. We are 
     concerned by what seems to be a trend of the Department 
     pursuing MBTA enforcement actions against oil and gas 
     companies for conduct that is otherwise overlooked when it is 
     undertaken by renewable energy companies. Fair and consistent 
     application of federal enforcement authority is fundamental 
     to equal justice under the law as well as to the President's 
     and Congress' call for an ``all of the above'' energy policy 
     that pursues all forms of energy production.
       On one hand, the Department of Justice chose to prosecute 
     three oil and gas production companies for the incidental 
     killing of migratory birds in North Dakota. In those cases, 
     the companies were charged with the incidental killing of 
     four mallards, one northern pintail, one red-necked duck, and 
     a say's phoebe. By determining that the MBTA ``only covers 
     conduct directed against wildlife,'' a Court rejected your 
     Department's claim that these producers had violated the 
     MBTA.
       The Court noted, and we agree, that ``it is highly unlikely 
     that Congress ever intended to impose criminal liability on 
     acts or omissions of persons involved in lawful commercial 
     activity, which may indirectly cause the death of birds 
     protected by the Migratory Bird Treaty Act.'' Furthermore, 
     the Judge reasoned that, if the Department's interpretation 
     of the MBTA was adopted, ``then many everyday activities 
     [would] become unlawful--and subject to criminal sanctions--
     when they cause the death of pigeons, starlings, and other 
     common birds. For example, ordinary land uses which may cause 
     bird deaths include cutting brush and trees, and planting and 
     harvesting crops. In addition, many ordinary activities such 
     as driving a vehicle, owning a building with windows, or 
     owning a cat, inevitably cause bird deaths.''
       On the other hand, you have not prosecuted a single wind 
     producer for migratory bird deaths that occur as a result of 
     wind energy production. The U.S. Fish and Wildlife Service's 
     fiscal year 2013 budget justification estimated annual bird 
     mortality from wind energy production at approximately 
     440,000. This number suggests that a significant number of 
     birds, some of which have additional protections under the 
     Endangered Species Act, are harmed by wind turbines on wind 
     farms.
       We were recently made aware that Federal officials have 
     decided to allow a wind energy farm in southeastern Minnesota 
     to apply for a permit to allow for the death of bald eagles, 
     who are obviously the symbol of the United States. If allowed 
     to proceed, the project has the potential to kill between 
     eight and fifteen bald eagles each year. We find it absurd 
     that the Department of Justice, in conjunction with the Fish 
     and Wildlife Service, could reasonably conclude that three 
     oil and gas operators should face prosecution for the 
     incidental killing of seven birds at the same time it 
     considers permits to kill between eight and fifteen bald 
     eagles. This does not pass the common-sense test, and 
     suggests the Administration is hostile towards traditional 
     energy production.
       We do not condone the indiscriminate killing of birds from 
     any sort of energy production. Nor do we believe the 
     Department should target businesses because of the type of 
     energy being produced. To that end, we seek to understand why 
     your Department has chosen to selectively prosecute oil and 
     gas producers at the same time the Administration considers 
     granting permits that will result in the killing of bald 
     eagles. In order to help us better understand and analyze 
     your policy, please provide us with answers to the following 
     questions:
       1. In the past four years, how many criminal prosecutions 
     has the Department undertaken against oil and gas producers 
     who have allegedly violated the MBTA? Of those prosecutions, 
     how many prosecutions involved a felony for a knowing MBTA 
     violation and how many prosecutions have involved a 
     misdemeanor prosecution?
       2. In the past four years, how many criminal prosecutions 
     has the Department undertaken against wind energy producers 
     who have allegedly violated the MBTA? Of those prosecutions, 
     how many prosecutions involved a felony for a knowing MBTA 
     violation and how many prosecutions have involved a 
     misdemeanor prosecution?
       3. Last year, Stacey Mitchell, Chief of the Environmental 
     Crimes Section, stated at a public conference that the 
     Department brings prosecutions based on the willingness of a 
     company to cooperate as opposed to the number of birds that 
     are killed. Please provide us with any guidelines the 
     Department considers when making the determination to 
     prosecute an energy producer under the MBTA. Do your 
     guidelines or any policy directives distinguish between oil 
     and gas producers and wind energy producers?
       4. Please explain the apparent targeting of oil and gas 
     producers for violations under the MBTA. Do you believe it is 
     inconsistent to prosecute energy producers for the deaths of 
     seven animals among three producers at the same time the 
     Administration condones an energy project that plans to kill 
     between eight and fifteen bald eagles each year?
       We hope that you will provide us a prompt response so that 
     we can understand the Department's decision-making processes 
     on this important issue. Should you have any questions, 
     please feel free to contact us.
           Sincerely,
     David Vitter,
       Ranking Member, U.S. Senate EPW Committee.
     Lamar Alexander,
       United States Senate.

  Mr. VITTER. Thank you, Madam President. With that I close and thank, 
again, my colleague from Tennessee.
  The ACTING PRESIDENT pro tempore. The Senator from Tennessee.
  Mr. ALEXANDER. Madam President, I am here to join with and 
congratulate the Senator from Louisiana for his leadership on this 
issue. These are important matters for a couple of reasons. One is, as 
the Senator from Louisiana said, the rule of law is one of the 
fundamental principles of the American character. We expect laws to be 
enforced evenly, whether it is a little law or whether it is a big law. 
Obviously, here, the Department of Justice is enforcing a law against 
oil and gas companies but not against wind companies. It is the same 
law; it should be applied in the same way.
  The second is the matter of birds. Someone might say: Why would 
Senators take the time to talk about birds?
  I am reading one of President Teddy Roosevelt's books. This is about 
his African game hunt after he was President of the United States. He 
wrote a lot of books, and he was a great President. All of us concede 
that. We remember him for many things, but if we read carefully Teddy 
Roosevelt's biography, his entry into political life was because of his 
concern for birds. He was a bird man. He protected birds. He captured 
them and brought them to various museums of America to serve as 
exhibits. He helped enact the laws that protect birds.
  In one of the biographies of Teddy Roosevelt I read, the author 
pointed out that the single largest spectator sport in the United 
States is not football, it is not NASCAR, it is bird watching. I am not 
much of a bird watcher, but these laws are important for that reason as 
well.
  The Senator has spoken very specifically and clearly about what is 
going on here. We have the Migratory Bird

[[Page 776]]

Treaty Act, almost 100 years old. A person can go to jail if they 
violate the Migratory Bird Treaty Act. Then there is the Bald and 
Golden Eagle Act. That protects one of our national symbols. A person 
can go to jail for that too, and be fined $100,000 and imprisonment of 
1 year for killing bald eagles and golden eagles.
  The letter Senator Vitter and I sent today to the Attorney General 
asks: If you are enforcing that law against one kind of energy company, 
why aren't you enforcing it against another kind of energy company? Or 
if you think you are not going to enforce the law--and sometimes this 
administration just decides that it will not enforce the law--then at 
least enforce the law in an evenhanded way.
  The Senator from Louisiana mentioned the energy farm in southeastern 
Minnesota that has applied for a permit that will allow the wind farm 
to kill the protected bald eagles. Basically, what is happening here is 
the wind farm is applying for a federal hunting license to kill eagles, 
and the U.S. Government is considering granting a hunting license to a 
wind farm to kill these protected bald eagles. How does that fit with 
an evenhanded system of justice, equal treatment of the law?
  ExxonMobil, in 2009, pled guilty to killing 85 birds that had come 
into contact with crude oil. Exxon paid $600,000 in fines and fees. 
PacifiCorp in Oregon paid $1.4 million in fines for killing over 200 
eagles in Wyoming. Yet a wind farm in Minnesota is applying for a 
hunting license to put up Cuisinarts in the sky to kill protected 
eagles. That is not evenhanded.
  It is no excuse to say, well, cats kill birds, windows kill birds, 
other things kill birds. That may be, but we have Federal laws against 
those who set out and set up machines that deliberately kill birds. We 
need to have a rational policy for treating all energy companies the 
same.
  So that is our discussion today. We believe it is important. The head 
of the Audubon Society in Los Angeles says the threat to golden eagles 
by wind farms has the potential to wipe this large, long-lived species 
out of the sky.
  I think all of us know these are not our grandmothers' windmills. 
These are giant turbines that are three times as tall as the sky boxes 
at one of the most recognizable features in Tennessee, which is the 
University of Tennessee football stadium. These are huge monstrosities, 
and they have many detriments to the environment. They destroy 
viewscapes, they are noisy, and we can see their flashing lights for 
miles. We don't want to see them on the scenic mountains of east 
Tennessee where people come to see the Great Smoky Mountains--not to 
see these big white towers.
  In their enthusiasm for wind power as a solution to our electricity 
needs in the United States, I am afraid the administration is 
destroying the environment in the name of saving the environment and 
producing at the same time a type of electricity that is intermittent, 
that only operates when the wind blows, is expensive, and has huge 
subsidies from the Federal taxpayer that would make any tax subsidy for 
oil companies look small by comparison.
  Let's put all the questions about wind power to one side except this 
one: Why is the U.S. Department of Justice enforcing the migratory bird 
laws against one set of energy producers--oil and gas--and not against 
another--wind farms? That is what Senator Vitter and I would like to 
know. That is why we are sending the letter today.
  I ask unanimous consent to have printed in the Record two articles: 
one from the Wall Street Journal and one other article from the Los 
Angeles Times about the effect of wind farms on protected birds.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Los Angeles Times, Aug. 3, 2011]

      Federal Officials Investigate Eagle Deaths at DWP Wind Farm

                           (By Louis Sahagun)

       Pine Tree facility in the Tehachapi Mountains faces 
     scrutiny over the deaths of at least six golden eagles, which 
     are protected under federal law. Prosecution would be a major 
     blow to the booming industry.
       Federal authorities are investigating the deaths of at 
     least six golden eagles at the Los Angeles Department of 
     Water and Power's Pine Tree Wind Project in the Tehachapi 
     Mountains, the U.S. Fish and Wildlife Service said Tuesday.
       So far, no wind-energy company has been prosecuted by 
     federal wildlife authorities in connection with the death of 
     birds protected by the Migratory Bird Treaty Act and the Bald 
     and Golden Eagle Protection Act. A prosecution in the Pine 
     Tree case could cause some rethinking and redesigning of this 
     booming alternative energy source. Facilities elsewhere also 
     have been under scrutiny, according to a federal official 
     familiar with the investigations.
       ``Wind farms have been killing birds for decades and law 
     enforcement has done nothing about it, so this investigation 
     is long overdue,'' said Shawn Smallwood, an expert on raptor 
     ecology and wind farms. ``It's going to ruffle wind industry 
     feathers across the country.''
       Wildlife Service spokeswoman Lois Grunwald declined to 
     comment on what she described as ``an ongoing law enforcement 
     investigation regarding Pine Tree.''
       Joe Ramallo, a DWP spokesman, said, ``We are very concerned 
     about golden eagle mortalities that have occurred at Pine 
     Tree. We have been working cooperatively and collaboratively 
     with the U.S. Fish and Wildlife Service and the California 
     Department of Fish and Game to investigate these incidents.
       ``We have also actively and promptly self-reported raptor 
     mortalities to both authorities,'' he said. ``Moving forward, 
     we will be ramping up further our extensive field monitoring 
     and will work with the agencies to develop an eagle 
     conservation plan as part of more proactive efforts to 
     monitor avian activities in the Pine Tree area.''
       An internal DWP bird and bat mortality report for the year 
     ending June 2010 indicated that compared to 45 other wind 
     facilities nationwide, bird fatality rates were ``relatively 
     high'' at Pine Tree, which has 90 towers generating 120 
     megawatts on 8,000 acres.
       Golden eagles weigh about 14 pounds and stand up to 40 
     inches tall. Their flight behavior and size make it difficult 
     for them to maneuver through forests of wind turbine blades 
     spinning as fast as 200 mph--especially when they are 
     distracted by the sight of prey such as squirrels and 
     rabbits.
       DWP officials acknowledged that at least six golden eagles 
     have been struck dead by wind turbine blades at the two-year-
     old Kern County facility, about 100 miles north of Los 
     Angeles, which was designed to contribute to the city's 
     renewable energy goal of 35% by 2020.
       Although the total deaths at Pine Tree pale in comparison 
     with the 67 golden eagles that die each year in Northern 
     California's Altamont Pass Wind Resource Area, the annual 
     death rate per turbine is three times higher at the DWP 
     facility. The Altamont Pass facility has 5,000 wind 
     turbines--55 times as many as Pine Tree.
       Nationwide, about 440,000 birds are killed at wind farms 
     each year, according to the Wildlife Service. The American 
     Wind Energy Assn., an industry lobbying group, points out 
     that far more birds are killed by collisions with radio 
     towers, tall buildings, airplanes and vehicles, and 
     encounters with household cats.
       Attorney Allan Marks, who specializes in renewable energy 
     projects, called the Pine Tree deaths ``an isolated case. If 
     their golden eagle mortality rate is above average, it means 
     the industry as a whole is in compliance.''
       About 1,595 birds, mostly migratory songbirds and medium-
     sized species such as California quail and western 
     meadowlark, die each year at Pine Tree, according to the bird 
     mortality report prepared for the DWP last year by Ojai-based 
     BioResource Consultants.
       BioResource spokesman Peter Cantle suggested that those 
     bird deaths may be unrelated to Pine Tree's wind turbines.
       ``It's hard to tease out those numbers,'' he said. 
     ``Basically, we walked around the site to find bird 
     mortalities, which could have been attributable to a number 
     of things including natural mortality and predators.''
       The death count worries environmentalists because the $425-
     million Pine Tree facility is in a region viewed as a 
     burgeoning hot spot for wind energy production.
       ``We believe this problem must be dealt with immediately 
     because Pine Tree is only one of several industrial energy 
     developments proposed for that area over the next five to 10 
     years,'' said Los Angeles Audubon President Travis Longcore. 
     ``Combined, they have the potential to wipe this large, long-
     lived species out of the sky.''
                                  ____


             [From the Wall Street Journal, Sept. 7, 2009]

                    Windmills Are Killing Our Birds


    One standard for oil companies, another for green energy sources

                           (By Robert Bryce)

       On Aug. 13, ExxonMobil pleaded guilty in federal court to 
     killing 85 birds that had come into contact with crude oil or 
     other pollutants in uncovered tanks or waste-water facilities 
     on its properties. The birds were protected by the Migratory 
     Bird Treaty Act, which dates back to 1918. The company agreed 
     to pay $600,000 in fines and fees.

[[Page 777]]

       ExxonMobil is hardly alone in running afoul of this law. 
     Over the past two decades, federal officials have brought 
     hundreds of similar cases against energy companies. In July, 
     for example, the Oregon-based electric utility PacifiCorp 
     paid $1.4 million in fines and restitution for killing 232 
     eagles in Wyoming over the past two years. The birds were 
     electrocuted by poorly-designed power lines.
       Yet there is one group of energy producers that are not 
     being prosecuted for killing birds: wind-power companies. And 
     wind-powered turbines are killing a vast number of birds 
     every year.
       A July 2008 study of the wind farm at Altamont Pass, 
     Calif., estimated that its turbines kill an average of 80 
     golden eagles per year. The study, funded by the Alameda 
     County Community Development Agency, also estimated that 
     about 10,000 birds--nearly all protected by the migratory 
     bird act--are being whacked every year at Altamont.
       Altamont's turbines, located about 30 miles east of 
     Oakland, Calif., kill more than 100 times as many birds as 
     Exxon's tanks, and they do so every year. But the Altamont 
     Pass wind farm does not face the same threat of prosecution, 
     even though the bird kills at Altamont have been repeatedly 
     documented by biologists since the mid-1990s.
       The number of birds killed by wind turbines is highly 
     variable. And biologists believe Altamont, which uses older 
     turbine technology, may be the worst example. But that said, 
     the carnage there likely represents only a fraction of the 
     number of birds killed by windmills. Michael Fry of the 
     American Bird Conservancy estimates that U.S. wind turbines 
     kill between 75,000 and 275,000 birds per year. Yet the 
     Justice Department is not bringing cases against wind 
     companies.
       ``Somebody has given the wind industry a get-out-of-jail-
     free card,'' Mr. Fry told me. ``If there were even one 
     prosecution,'' he added, the wind industry would be forced to 
     take the issue seriously.
       According to the American Wind Energy Association, the 
     industry's trade association, each megawatt of installed 
     wind-power results in the killing of between one and six 
     birds per year. At the end of 2008, the U.S. had about 25,000 
     megawatts of wind turbines.
       By 2030, environmental and lobby groups are pushing for the 
     U.S. to be producing 20% of its electricity from wind. 
     Meeting that goal, according to the Department of Energy, 
     will require the U.S. to have about 300,000 megawatts of wind 
     capacity, a 12-fold increase over 2008 levels. If that target 
     is achieved, we can expect some 300,000 birds, at the least, 
     to be killed by wind turbines each year.
       On its Web site, the Wind Energy Association says that bird 
     kills by wind turbines are a ``very small fraction of those 
     caused by other commonly accepted human activities and 
     structures--house cats kill an estimated one billion birds 
     annually.'' That may be true, but it is not much of a 
     defense. When cats kill birds, federal law doesn't require 
     marching them to our courthouses to hold them responsible.
       During the late 1980s and early '90s, Rob Lee was one of 
     the Fish and Wildlife Service's lead law-enforcement 
     investigators on the problem of bird kills in Western oil 
     fields. Now retired and living in Lubbock, Texas, Mr. Lee 
     tells me that solving the problem in the oil fields ``was 
     easy and cheap.'' The oil companies only had to put netting 
     over their tanks and waste facilities.
       Why aren't wind companies prosecuted for killing eagles and 
     other birds? ``The fix here is not easy or cheap,'' Mr. Lee 
     told me. He added that he doesn't expect to see any 
     prosecutions of the politically correct wind industry.
       This is a double standard that more people--and not just 
     bird lovers--should be paying attention to. In protecting 
     America's wildlife, federal law-enforcement officials are 
     turning a blind eye to the harm done by ``green'' energy.

                          ____________________