January 28, 2016

Is environmental law an ass?

By Jonathan Wood Attorney

No, according to a decision from the Second Circuit issued this week. In Friends of Animals v. Clay, a radical animal rights group challenged a federal permit to take migratory birds that pose a risk to planes at New York’s La Guardia and JFK airports.

Birds can be a major threat to planes. Collisions can cause engines to explode. Probably the most famous bird-strike event was the crash landing of Flight 1549 in the Hudson River by Capt. “Sully” Sullenberger. That plane was brought down after colliding with a flock of geese shortly after takeoff. In other words, protecting airports from the threat that migratory birds pose to human safety is pretty gosh darn important.

Friends of Animals’ challenge argued that the government’s permit can only authorize the take of specific species of migratory birds. In effect, the group argued, the law doesn’t allow an airport to protect planes from unexpected species of migratory birds. If any show up, the law requires the airport to sit idly by while planes fall from the sky.

That’s obviously crazy, which wasn’t lost on the Second Circuit.

FOA concedes that if we read § 21.41 as it urges, situations might arise in which (1) a migratory bird, of a species not listed on the Port Authority’s permit because its presence at JFK was unforeseen, poses a direct threat to an aircraft, and (2) Port Authority officials are not empowered by permit to take the bird because its species is not listed. It notes that, should such a situation come to pass, it would likely be best for Port Authority officials to take the bird notwithstanding their apparent lack of authority to do so. FOA posits that these officials might be shielded by an affirmative defense of necessity, and at all events the government would probably decline to prosecute such conduct.

We conclude that § 21.41 does not place Port Authority officials in the untenable position of having to choose between violating federal law and deliberately ignoring serious threats to human safety. Rather, the regulation plainly authorizes FWS to issue depredation permits that contain non-species-specific emergency-take provisions.

In other words, the law isn’t an ass. It doesn’t absurdly dictate that airport officials knowingly break the law in order to prevent catastrophes, then blindly hope that they don’t get thrown in jail for it. Although this is a welcome result, the case is an important reminder of how absurd radical groups’ interpretations of environmental law are.

What to read next