Migratory Bird Treaty Act

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.

 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: