The top Republican on the Environment and Public Works Committee, Sen. David Vitter (R-La.), and Sen. Lamar Alexander (R-Tenn.) want answers from Attorney General Eric Holder on apparent bias against oil and gas producers in enforcement of the Migratory Bird Treaty Act — despite hundreds of thousands of birds killed annually by wind energy production.

“It appears the Justice Department is hand-picking which migratory bird mortality cases to pursue with an obvious preference of going after oil and gas producers,” said Vitter. “For example, while three oil and gas companies are facing fines for killing birds, a wind energy company is applying for permits to kill up to fifteen bald eagles. We obviously don’t want to see any indiscriminate killing of birds from any sort of energy production, yet the Justice Department’s ridiculous inconsistencies begs questioning and clarity.”

In a letter to Holder today, the senators seek clarification of his policy on the criminal statute that makes it unlawful to “kill” or “take” a migratory bird, nest, or egg.

In the fracking-boom state of North Dakota, three oil and gas production companies were charged with the incidental killing of four mallards, one northern pintail, one red-necked duck, and a say’s phoebe. A judge said that, if the Department of Justice’s interpretation of the MBTA was adopted, “then many everyday activities [would] become unlawful- and subject to criminal sanctions- when they cause the death of pigeons, starlings, and other common birds. For example, ordinary land uses which may cause bird deaths include cutting brush and trees, and planting and harvesting crops. In addition, many ordinary activities such as driving a vehicle, owning a building with windows, or owning a cat, inevitably cause bird deaths.”

Holder’s department has not prosecuted a single wind producer for migratory bird deaths that occur as a result of wind energy production, the senators note.

“We find it absurd that the Department of Justice, in conjunction with the Fish and Wildlife Service, could reasonably conclude that three oil and gas operators should face prosecution for the incidental killing of seven birds at the same time it considers permits to kill between eight and fifteen bald eagles. This does not pass the common-sense test, and suggests the Administration is hostile towards traditional energy production,” Vitter and Alexander wrote.

“We do not condone the indiscriminate killing of birds from any sort of energy production.  Nor do we believe the Department should target businesses because of the type of energy being produced.  To that end, we seek to understand why your Department has chosen to selectively prosecute oil and gas producers at the same time the Administration considers granting permits that will result in the killing of bald eagles.”