There are currently two sets of laws in America: laws that apply to everyone and laws that apply to everyone except for friends of the Obama administration.
In January I wrote about how the executive branch had argued that the Migratory Bird Treaty Act of 1918 should be broadly interpreted in order to impose criminal liability for actions that indirectly result in a protected bird’s death. The administration used that reasoning to file criminal charges against three energy companies.
Yet while one section of the Obama Administration was arguing that they should be able to prosecute energy companies (oil and gas) for killing migratory birds, another section of the Obama Administration was arguing that other companies in the energy industry (wind) should be exempt from prosecution for killing birds. The latter section at least got what it wanted: the wind industry can now apply for a free pass to kill birds:
The newly finalized rule would grant 30-year permits allowing wind farms and other projects to accidentally kill federally protected eagles, provided they meet certain criteria.
The new rule, which extends an existing five-year window, comes at the same time the government is stepping up its oversight of illegal bird deaths on wind farms.
Large birds can be killed when they are struck by the spinning blades of wind turbines that have become a common sight around the nation in recent years.
The new rule, which takes effect immediately, is a victory for the wind industry. The industry has contended that the five-year permit created uncertainty, as companies prepared to finance large-scale projects intended to last up to three decades.
What’s unusual about this exemption is that it was previously denied for religious reasons. At the Volokh Conspiracy, Will Baude points out the connection to the Religious Freedom Restoration Act:
In 2008, the Tenth Circuit decided a case called United States v. Winslow Friday, in which Mr. Friday was prosecuted for killing a bald eagle to use in his tribe’s religious ritual. One of Mr. Friday’s arguments on appeal was that [Religious Freedom Restoration Act] requires the federal government to treat tribal killings and power-company killings of eagles with parity. The Court did not disagree with this premise, but concluded, at the time, that “with respect to both religious and secular threats to the eagle, the government appears to take a similar approach.”
Will the federal government still take a similar approach? If they are giving 30-year eagle-killing passes to wind companies will they also give them Native Americans who need to sacrifice eagles for religious purposes? The Obama administration’s previous disregard for religious accommodation shows the Native Americans are unlikely to get equal treatment. When it comes to the rules that apply to his friends, Obama’s double standard is most fowl.
