If a bird flies into your open-top oil storage tank – or your unprotected reserve pit – and dies, could you be guilty of the crime of violating the Migratory Bird Treaty Act? The short answer is “ Maybe”.

In United States v. CITGO Petroleum Corp., ten dead birds were discovered in storage tanks at CITGO’s Corpus Christi refinery. The government brought criminal charges. CITGO was found guilty and moved to vacate the conviction. Their argument was that the company was engaged in a commercial activity that was not intended to kill birds, while the MBTA was intended to criminalize hunting, trapping, poaching and other activities actually intended to take or kill the birds. The district court upheld the conviction.

Federal courts disagree about whether oil companies can be convicted of violating the MBTA when birds are unintentionally killed as a result of their operations. The appeals court overseeing district courts in Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah has held that companies may be criminally responsible. District courts in Louisiana and North Dakota have reached the opposite conclusion.

In CITGO, the Texas court held that companies can be held criminally liable, but due process requires that the defendant’s actions “proximately caused” the birds’ deaths (i.e., the deaths resulting from the activity must be reasonably foreseeable). Testimony at trial was that a number of people had seen birds in the tanks and reported them to management but CITGO failed to act.  CITGO’s failure to cover the tanks violated the Clean Air Act and Texas state regulations.

You don’t operate a refinery, so you’re off the hook, correct? Not so fast. In an earlier decision from Kansas, a producer was convicted under the MBTA after dead migratory birds were discovered lodged in heater treaters. The U.S Fish and Wildlife Service had warned operators and equipment suppliers of potential liablity and their intent to enforce in the future.   

But in another case from Texas, the operator of a well was not guilty when dead birds were found in its unprotected reserve pits.  The difference is that where there was guilt, the underlying activity of the defendant was unlawful (the Kansas operator had been warned that the statute was going to be enforced), whereas for the not-guilties, the activity (such as an un-netted reserve pit) was legal and permissible.

Takeaway:  This is a strict liability crime – no actual intent to take or kill a bird is required.  Guilt will depend on, among other factors, where you operate, whether the deaths were forseeable, and whether other laws were violated. You can’t change geography, but you can be sure you are not violating other law or regulation, and if you have knowledge of a potential death trap for a Northern Flicker on his semi-annual commute, fix it. 

Special thanks to Bill Drabble for his contribution to this post.

Companies can’t go to the penitentiary.  If  they did, this musical interlude explains how they could pass the time:  

http://www.youtube.com/watch?v=JxwjX8UQRrQ

Co-authors Paul Yale and Rusty Tucker

Herein, highlights from the Pennsylvania Supreme Court in Briggs, et al. v. Southwestern Energy Production Company. The rule of capture applies to oil and gas produced from wells completed using hydraulic fracturing and precludes trespass liability for drainage from under nearby property, where the well is drilled solely on and beneath the driller’s own property and frack fluids are injected solely beneath the driller’s own property.

Why is this a big deal?

This decision is only the second application by a state supreme court of the rule of capture to hydraulic fracturing (from Texas, Coastal Oil & Gas Corp. v. Garza Energy Trust was the first). The Pennsylvania Supreme Court has reached a similar result – drainage resulting from hydraulic fracturing does not itself constitute trespass. Continue Reading Pennsylvania Supreme Court Says No Trespass by Fracking

Briggs v. Southwestern Energy is another way to say “chaos” in Pennsylvania. The Superior Court ruled that fracking may constitute a trespass when subsurface frac-fluid and proppants cross boundary lines and extend into the subsurface estate of an adjoining property owner from whom the operator does not have a mineral lease, resulting the extraction of natural gas from beneath the adjoining property. Continue Reading Trespass by Fracking Recognized in Pennsylvania

EPA in  ActionUSA v. Citgo Petroleum highlights the excruciating degree of detail in federal regulations and the gymnastics the EPA will employ to justify a prosecution. The Fifth Circuit has reversed Citgo Petroleum’s conviction for violations of two federal laws.

Breathing Easier Under the Clean Air Act

The EPA regulates oil refinery waste water treatment systems under the Clean Air Act. They emit dangerous levels of volatile organic compounds, which produces ozone. so far, so good; now for the minutia:

Can an equalization tank be an “oil water separator”?  The district court used a purely functional explanation – defining an oil water separator by how it is used. This was not correct. Subpart QQQ (See the regs at 40 C.F.R § 60 et seq) defines an oil water separator by how it is used and also by its constituent parts.  It is equipment “… used to separate oil from water consisting of a separation tank, which also includes the forebay and other separator basins, skimmers, weirs, grit chambers, and sludge hoppers.”  When used in this way, “consists” is as an exhaustive list; the components are a part of the definition.

That is different than if the regulation had said “includes”.  Used in that way, that phrase does not mean that the listed equipment is necessary for the regulation to be invoked.  The Court explained that “including” is “inclusive but not mandatory” and distinct from “consisting of”.  The court also cited “Subpart Kb”, which regulates storage vessels excluded from Subpart QQQ.

The government warned that this reading of Subpart QQQ would create a “massive loophole” in the regulatory structure.  The court replied that equalization tanks were not under-regulated because “Subpart Kb” still applies.  Further, the government is authorized under the Clean Air Act to fix the loopholes with new regulations.

How did Texas Approach It?

Is there a difference between state and federal regulators?  Some years before the inspection at issue the Texas Department of Environmental Quality cited Citgo for operating the tanks as oil water separators, agreed that the tanks were not separators under Subpart QQQ, and dropped the charges.

The Migratory Bird Treaty Act of 1918 – Is it “Taking” or Bird Murder?

The MBTA declares it “ … unlawful, by any means or in any manner, to pursue, hunt, take, capture, kill, … any migratory bird.” According to the court, “taking” is limited to deliberate acts done directly and intentionally. To “take” is to reduce those animals by killing or capturing to human control. It involves only conduct intentionally directed at the birds, such as hunting or trapping, not commercial activity that unintentionally and indirectly causes bird deaths.

By contrast, the Endangered Species Act defines “take” to mean “harass, harm, … ”  “Harass” includes a negligent act or omission and “harm” means any act which actually kills or injures wildlife, not only acts that directly result in the death of endangered species.

Other Interesting Facts in the Opinion

  • Take a tour of the refinery wastewater treatment process
  • Have a grammar lesson reminiscent of your high school English class
  • Find out why the court refused to define “kill”
  • Impress your friends by knowing how many birds are killed each year by flying into windows
  • Face the ugly truth that house cats in Wisconsin are “serial violators of the MBTA”
  • Ponder the difference between means rea and actus reus
  • Learn to spot a “temporizing modifier” when you see one.

Speaking of Byrds, here they are for today’s musical interlude. From an under-appreciated album.

As we know, the Parrs won a $2.9 million jury verdict against Aruba Petroleum for a nuisance created by gas wells near the Parrs’ home in Wise County, Texas. Let’s see what claims didn’t make their way to the jury.  (See the court’s web site for the motions  discussed below and other filings in the case).

The Pre-Trial Motions

Halliburton argued in a motion for summary judgment that there was no evidence on these claims:

  • Assault, intentional infliction of emotional distress, negligence, gross negligence, negligence per se,
  • private nuisance,
  • trespass and subsurface trespass to real property.

The court granted Halliburton’s motion on all counts.

Motions for summary judgment were filed by producer defendants asserting there was no evidence for these claims:

  • Intentional infliction of emotional distress,
  • Negligence, gross negligence, or negligence per se,
  • Civil conspiracy,
  • Causation between any alleged act or omission by the defendants and the plaintiffs’ injuries.

The court dismissed all plaintiffs’ causes of action except for nuisance and trespass.

Encana then filed a motion for summary judgment on nuisance and trespass, alleging:

  • Of its 42 wells in close proximity of the home, all but three were drilled and completed prior to the time the plaintiffs said they first experienced health symptoms. Twenty other wells were drilled by operators other than EnCana,
  • Air emissions that comply with the federal and Texas Clean Air Acts cannot be unreasonable as a matter of law with respect to a nuisance claim and cannot constitute a trespass,
  • Migratory particles do not constitute trespass as a matter of law,
  • The common law claims were preempted by the Texas and federal Clean Air Acts. Those statutes and their regulations establish permissible levels for emissions and potential contaminants. Activity that comports with those standards could not be the subject of a civil suit for compliant activity.

This motion was denied, and Encana settled before trial. Those of us who weren’t there don’t know what effect, if any, Encana’s motion had on the settlement. It’s possible that the plaintiffs saw a better target in Aruba and didn’t want to confuse the jury. EnCana was a good operator and there was evidence that Aruba had TCEQ compliance problems.

Somewhere in all this were defendants’ unsuccessful motions that the claims were barred by limitations.

Aruba challenged the damage claims in a pre-trial brief:

  • Future property damages are not recoverable for permanent damage to real property,
  • A plaintiff cannot recover for loss market value of property and costs of repair.

What does it mean?

In the end, the court allowed only nuisance and trespass to be considered by the jury. Defendants might think: We’ll still beat “fracing plaintiffs” on the traditional causes of action. We’ll see what the trial judge and, if not him the court of appeals, does with trespass and nuisance.

Plaintiffs, without studying the evidence and legal arguments in detail, can’t tell if future cases are likely to end up like Parr, with dismissal of the traditional claims. They no-doubt see the case generally as a victory, in that the nuisance claim got to the jury.

This post doesn’t address the plaintiffs’ personal injury claims. We’ll save that for another time.

Today’s musical interlude reflects a simpler time.  Remember when you could classify a person by whether he was “Ford” or “Chevy“.  Giddyup.

What is a wild bird worth? Does it matter whether it is a Bald or Golden Eagle, of which here are few, or ducks and pelicans, of which there are enough (as least the ducks) so that hunters may shoot them for dinner.  Does it matter how they meet their demise? Is a bird drowned in oil worth more one fried by a solar panel or chopped up into pieces by a wind turbine?  If one is determined to have no value and the other somewhere between several hundred and several thousand dollars, would you wonder how the value is calculated?  And what about bats – those environmentally friendly creatures without a lot of human admirers?

A 2012 post discussed a fine on CITGO Petroleum for violating the Migratory Bird Treaty Act. Ten migratory birds drowned in storage tanks at CITGO’s Corpus Christi refinery. The company was convicted on two felony and three misdemeanor counts.  In 2012 the court determined the fine could be as large as $2,000,900.  In a February 10, 2014 Judgment, the fine actually imposed was $1,045,000. The fine included Clean Air Act violations as well.

On the other end of the federal regulatory continuum, you have three examples of the effect of wind and solar operations on our avian friends.

We are warned of a new rule by the Department of the Interior that, in the words of the Audubon Society, makes possible 30 year permits for wind energy companies to site wind turbines in ways that kill Golden and Bald eagles.

What is reputed to be the world’s largest solar farm, the Ivanpah Solar Electric Generating System in the Mohave Desert in California, is said to be causing birds flying through the area to be scorched by the 350,000 gigantic mirrors covering an area of five square miles and which generate temperatures of 1,000 degrees Fahrenheit. Environment groups are challenging the project and complaining about its effect on wildlife. For their part, the regulators are conducting a two year study on the plant’s effect on birds.

And a study by Mark Hayes of the University of Colorado in the journal Bioscience estimates that 600,000 to 900,000 bats could be killed every year as a result of flying into wind turbines. The estimate is based on the number of dead bats actually found at 21 locations.  Bioscience is a publication of the American Institute of Biological Sciences.

Is there a coherent public policy behind this disparate treatment of energy sources? I can’t find one.

Today’s musical theme give us choices: 

If I were a bird or a bat looking for an easy way out, I might be thinking like this:

But if I were a person looking for a party, I’d remember that it’s Mardi Gras.

. . . and I’m here to enforce the law and protect your natural resources . . . as long as it doesn’t  interfere with my other agenda. 

My October 10 post focused on criminal prosecutions and convictions of oil and gas operators in several states for violations of the Migratory Bird Treaty Act. It appears that enforcement of this and other federal wildlife protection statutes is quite selective.

Fox News reports that while oil and gas operators have been fined for causing the death of a few migratory birds (numbering in single and double digits), the wind industry has been exempted from prosecution under the Migratory Bird Treaty Act and the Eagle Protection Act for the destruction of tens of thousands of birds and bats.

Why? Because, proponents believe that such discrimination is necessary to allow the wind industry to compete with other fuel sources. Or maybe it’s because a homely poule d’eau drowned in a noxious pit of crude oil isn’t as tasty a dinner treat for other critters in the forest as a hamburgered golden eagle, ground up, as it were, to promote easy digestion.

For those of you who view Fox as the rightest of the right-wing conspirators, Voice of America reports generally the same news, and that conservation groups are suing wind developers in California and West Virginia.

And the American Bird Conservancy is concerned, as indicated by their Policy Statement on Wind Energy and Bird-Smart Wind Guidelines.

Sadly, as mentioned before in ths space this was to be the science-driven administration.