A Snowy Owl on an approach path at John F. Kennedy Airport. The birds often confuse tarmacs with the tundra. Photo: Francois Portmann

The Port Authority of New York and New Jersey now has the legal right to kill almost any bird on its property—as long as they declare it an emergency.

After a two-year battle with the animal rights group Friends of Animals, the 2nd U.S. Circuit Court of Appeals decided to uphold a 2014 decision that allowed the Port Authority of New York and New Jersey to exterminate birds that flock on their grounds. That's because “migratory birds that congregate near airports pose a well-known threat to human safety,” the court's documents state. The documents cite near-catastrophes like the 1995 collision between two Canada Geese and a Concorde jet, and the 2009 emergency landing in the Hudson River, prompted by a flock of geese, as backup. Though no one was killed in either incident—aside from the birds—there were heavy damages and expenses.

The right-to-kill case dates back to December 2013, when three Snowy Owls were shot at John F. Kennedy International Airport. Friends of Animals then sued the U.S. Fish and Wildlife Service, pointing out that catching and relocating the owls would have been a better alternative. The group also claimed that killing the birds was a violation of the Environmental Policy Act (NEPA), which requires federal agencies to assess the environmental effects of any proposed action, as well as the Migratory Bird Treaty Act, which prevents the hunting and killing of most birds in the United States. (There are exceptions to the MBTA—USFWS will give out permits to people or organizations to bypass the MBTA rules in order to go hunting, for instance.) The Port Authority has had such a permit since 1994—it’s allowed to take down 18 species of bird that compromise public safety via their potential to ground planes. The loophole in the loophole, however, is the “emergency take” provision in this permit, which allows airports to exterminate almost any migratory bird that “poses a direct threat to human safety.” The only birds that are exempt are Bald Eagles, Golden Eagles, and other endangered or threatened species.

So does this mean Snowy Owls and other favorite species have to learn to steer clear of these properties? Maybe not. Susan Elbin, director of conservation and science at New York City Audubon, says that despite the court's ruling, she's confident the Port Authority will try to avoid killing birds. "I know for a fact that they'll only use lethal control as a last resort. They spend days and days meeting about this subject and catching these birds," she says. In fact, the Port Authority often consults with NYC Audubon about methods for handling wildlife. "It’s unfortunate when wildlife and humans come into this conflict situation where they’re trying to share space—and that’s often what happens with airports—but I know that the Port Authority is doing their best to trap and relocate them."

In a news release, Priscilla Feral, president of Friends with Animals, said she was disappointed by the court’s judgement. “The decision to kill three Snowy Owls was blind and irrational and needed to be challenged. We don’t like this ruling but it won’t discourage us from holding these agencies’ feet to the fire next time.”