UCLA Journal of Environmental Law and Policy

The Migratory Bird Treaty Act (MBTA) protects 1,027 bird species—the vast majority of native birds in the United States and its territories—by criminalizing the taking, killing, or selling of any migratory bird or bird part.3 Beginning in the 1960s, the Fish and Wildlife Service (FWS) began prosecuting industrial firms for “incidental take,” the unintentional taking or killing of migratory birds. Incidental take is a negative externality of industry: firms kill birds—a natural resource shared by all—and do not compensate for their loss. A split in authority consequently arose on whether the strict liability misdemeanor of the MBTA criminalizes such unintentional killings. In response to concerns of incidental take, the FWS is now in a rulemaking process, by which it hopes to establish an incidental-take permit program, allowing firms to purchase take permits, compensate the FWS for estimated bird take, and evade or at least minimize the risk of prosecution.

While the incidental-take circuit split has already received scholarly attention elsewhere, this Article tackles a larger conservation question, drawing on scholarship in the fields of emissions trading and conservation banking. This Article proposes two alternative market-based solutions to the menace of incidental take. First, the Bird Tax: a Pigouvian tax that seeks to correct the inefficient market outcome that results in uncompensated industrial and nonindustrial incidental take. Second, the North American Bird Market: a trilateral initiative building upon decades of successful environmental cooperation between Canada, the United States, and Mexico. By incentivizing clean energy, requiring industry to internalize its bird take, and promoting habitat restoration, the Bird Market is an efficient and clean theoretical solution to the menace of incidental take and the looming threat to our continent’s shared birdscape.

In contrast to a comprehensive, upstream Bird Tax that targets both industrial and nonindustrial incidental take, the Bird Market would entail potentially restrictive financial and logistical costs due to its limited focus on the regulation of industrial take. As such, it is possible that the Bird Market is a mere flight of fancy—a thought experiment whose doom radiates from its very core—and nothing more. Despite these challenges, this Article’s presentation of the Market serves three other purposes. First, the Market serves as a vehicle to expose the sobering truth that the MBTA and incidental-take prosecutions are an expressive, but ultimately fruitless conservation mechanism. Second, the Market is an investigation of how to quantify and trade death with the goal of conserving life. Finally, the exposition of the Market and the critique of the MBTA is an attempt to tightrope walk the seemingly unbridgeable legal-analytical rift between the ritualized law and economics of Ronald Coase,4 and the touchy-feelythrow-your-hands-up-in-the-air neorealism of Arthur Allan Leff. Ultimately, because incidental industrial take is only a minor anthropogenic stressor, the Market will fail to achieve meaningful conservation goals for the same reasons that incidental-take prosecutions under the MBTA fail to achieve these goals. August 2016 marked the centennial of the first migratory bird treaty with Canada. One hundred years have passed, and this Article calls upon Congress to abandon its ancient conservation precepts and supplement our treaties and the MBTA with a meaningful international habitat-restoration program.