The MBTA
Open Access DepositedWhy the DoD Should Want an Incidental Take Permit Program
Congress created the Migratory Bird Treaty Act (MBTA) of 1918 to stop hunters and poachers from killing migratory birds almost to extinction. However, now migratory birds face different, modern foes, industrial operators, such as the renewable energy industry. These industrial operators are not committing direct takes of migratory birds like hunters and poachers but indirect and unintentional takings of migratory birds. Courts are divided over whether or not the unintentional and incidental takes violate the MBTA. This split and confusion have led to uncertainty and fear of liability for industries, which has stifled innovation. It is time for Congress to amend the MBTA in a way that continues to protect migratory birds but also provides certainty to industries, so the MBTA does not throttle innovation. This thesis argues that a Congressionally-mandated Incidental Take Permit Program can grant industries the certainty they need regarding liability under the MBTA. That certainty will allow industries to innovate while allowing the Fish and Wildlife Services to use their tools to protect migratory birds from threats new and old. The creation of an Incidental Take Permit Program under the MBTA should be a top priority for DoD. The Incidental Take Permit Program will lead to innovation from the renewable energy industry that will enhance mission readiness and national security, reduce the DoD’s dependency on liquid fuel, combat climate change, and help the DoD compete with its near-peer adversaries. However, there must be a shift in how DoD’s government procurement officials think and evaluate products before the DoD can take advantage of the invaluable sustainable solutions from a Congressional mandated Incidental Take Permit Program. For DoD to fully maximize the benefits of an Incidental Take Permit Program under the MBTA, the DoD must form an aggressive sustainable procurement regime. This thesis explains how the DoD and its procurement officials can do this
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