Do Windows "Take" Birds?

The Endangered Species Act doesn’t allow anyone to “take” an endangered species.  The Act defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”  Federal regulations define “harass” as “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.”  The regulations define “harm” as “an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”

A recent NPR story about the danger glass in buildings poses to birds mentioned a Canadian lawsuit aimed at forcing building owners to adopt practices to make their buildings safer for birds.  The case is brought by Ecojustice, a Canadian charitable organization.  Read about it here and here.  The case argues that light reflected by the windows is radiation, and radiation is considered a contaminant under Canadian law that can harm animals.  A decision in the case is expected in November.

The case made me wonder whether a similar argument could be brought in the United States.  Naturally, I turned to the Endangered Species Act and the definitions detailed above for answers.  Is that language broad enough to include buildings with highly reflective windows?  The dangers posed to birds by windows are obvious every time someone hears a thud on a pane, aren’t they?  Given that something as simple as a net can abate the problem, maybe doing nothing to solve the problem is a sufficient negligent act or omission.  I wonder if any such argument has been made.

Maybe there are other provisions of the ESA or other statutes that protect buildings from suit, and I don’t care about that here.  My question is whether killing a billion birds could count as a “taking.”  Could it?  All the birds aren’t endangered, though, so I guess no one is taking them.

I also wonder how making buildings less reflective might affect climate change.  Greenhouse gases are transparent to reflected light, which travels at basically the same wavelength as sunlight when it enters the atmosphere, meaning it isn’t trapped by the gases and doesn’t contribute to climate change.  The problem posed by fewer reflective surfaces is clear — the less light reflected, the more light that’s absorbed and able to warm the planet.

I’ll try not to wonder about the supposed threat of an expansive federal government and activist judges trying to commandeer local building codes.  Maybe they’ll make me buy a window net at the same time I get insurance.

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