OPINION: Migratory Birds Need More Protection From Industries, Not Less: New Opinion By Trump Admin Exempts Industries Most Responsible For Bird Deaths From Liability
Editor’s note: This new rule is similar to the modification to enforcement of the Endangered Species Act, which will no longer consider habitat destruction, which is sometimes the sole reason a species is on the list, as intentional harm. And there have been a few species that have been removed from the ESL. Birds are essential to the environment, and play many critical roles in local ecosystems. Destruction of their habitat and incidental destruction by companies that lack responsibility despite their high level of profitability are largely responsible for declines in bird populations across the United States. One of the most stark examples is that of the American Bald Eagle, this country’s national bird, known by all Americans as the majestic representative of the United States. The bald eagle was a threatened species, and has certain habits of reproduction and migration that make it susceptible to destruction caused by habitat loss. They are one of the few who were removed from the list due to their popularity and efforts of their advocates. The reinterpretation of these long-standing rules as they apply to the Migratory Bird Treaty will make it even harder for birds such as the bald eagle to continue to survive. While sometimes these regulations have contributed to restoration of populations, it is only when companies are held accountable that this occurs. Key species that have recovered specifically due to the Migratory Bird Treaty Act include the Snowy Egret, Wood Duck, and Sandhill Cranes. By preventing destruction of their habitat and hunting of the birds themselves for their feathers, these bird species have rebounded significantly. These new regulations would threaten these and other species from actively recovering from habitat destruction and other endangering activities. Specifically, the red cockaded woodpecker has recovered specifically due to limitations placed on logging industries regarding old-growth forests, which this new opinion seeks to invalidate. Marbled Murrelets and Kirtland’s Warbler were also protected by the restrictions on logging.
Trump Administration Rolls Back Protections for Migratory Birds
The Trump administration late last week reinstated a dangerous opinion under the Migratory Bird Treaty Act from the president’s first term that allows extractive energy industries to harm or kill migratory birds in the name of seeking energy dominance. The opinion on incidental take exempts industries from being held accountable for the unintentional, but foreseeable, killing of birds during industrial activities.
“Rolling back these kinds of protections for migratory birds such as snowy owls, red-winged blackbirds, and white pelicans will undoubtedly result in the deaths of tens of thousands of birds,” said Daniel Moss, senior government relations representative at Defenders of Wildlife. “This action is particularly egregious as we approach the 15th anniversary of the Deepwater Horizon explosion which resulted in catastrophic mortality rates for sea birds. Only thanks to the MBTA, BP was forced to pay $100 million in fines. Weakening this law by giving businesses a free pass to do harm is the exact opposite of what our government should be doing.”
In 2020, the Southern District of New York declared the first Trump administration’s attempt to strip the MBTA of incidental take protections illegal, upholding the long-standing previous interpretation of the law.
Scientists estimate three billion birds have been lost across North America since 1970.
Migratory Bird Treaty Act
The Migratory Bird Treaty Act is America’s most important bird protection law. Passed in 1918 with the support of Audubon advocates and other early conservationists, the Migratory Bird Treaty Act (MBTA) protects nearly all of our country’s native birds. The law carries out the 1916 Migratory Bird Treaty with Canada, and later treaties signed with Mexico, Japan, and Russia, in order to protect our nation’s shared bird species. The MBTA is credited with saving numerous species from extinction, such as the Snowy Egret, Wood Duck, and Sandhill Crane, and millions, if not billions, of other birds.
The penalties under the bird protection law have served as critical incentives for companies to take common sense precautions to help reduce bird kills, such as covering oil pits with nets and marking transmission lines so they are more visible to migrating birds. Every Republican and Democratic administration since the 1970s has applied the law to avoidable industrial hazards, which has saved countless numbers of birds. The Trump administration eliminated this longtime protection at the end of his term, essentially creating a free pass to kill birds.
The change by the Trump administration limits the MBTA’s protection only to activities that purposefully kill birds, exempting all industrial hazards from enforcement. Any “incidental” death—no matter how inevitable, avoidable or devastating to birds—became immune from enforcement under the law. If this change had been in place in 2010, BP would have faced no consequences under the MBTA for the more than one million birds killed in the Deepwater Horizon oil spill. BP ended up paying $100 million in fines thanks specifically to provisions in the MBTA.
In response to overwhelming opposition to this move, the current administration has started a regulatory process to repeal this change, but reinstating the Migratory Bird Treaty Act should only be the beginning.
How We Fought Back
The reversal generated widespread concern from former senior DOI officials from Republican and Democratic administrations as well as three Flyway Councils, multiple states, and hundreds of organizations. Audubon and more than 500 conservation groups and other organizations from all 50 states joined together to urge Congress to defend country’s most important bird conservation law in the United States.
In 2018, Audubon and several other organizations filed lawsuits challenging that opinion. Eight states filed a similar suit in September 2018. In August of 2020, a federal district court ruled that the administration’s action do not align with the intent and language of the 100-year-old law. In her ruling, Judge Caproni found that the policy “runs counter to the purpose of the MBTA to protect migratory bird populations” and is “contrary to the plain meaning of the MBTA”. Despite this victory, the Trump administration proceeded with the rule change.
The rollback has bipartisan opposition including members of Congress, more than 25 states, numerous tribal governments, scientists, sportsmen, birdwatchers, and 250,000 people who submitted comments opposing the proposed rule change.
We’re also working to backstop the lost protections at the state-level. Over the last two years Vermont and California have established state-level migratory bird protections to help fill the gap left by the administration’s weakening of the MBTA and several other states are considering similar proposals.
The early support from the Biden administration to bring these protections back is promising. The rulemaking process to reinstate incidental take protections began in May 2021 with the comment period closing the following month.
What’s Next for MBTA
Audubon is pushing for the administration and Congress to establish a reasonable permitting approach for incidental take. A permitting program is a common-sense approach to clarifying these longstanding protections and providing the certainty industry wants. It would also help drive new and better ways for businesses to manage how they deal with birds.
During the last session of Congress, a bipartisan group of more than 90 members of the U.S. House of Representatives sponsored the Migratory Bird Protection Act which would secure protections for birds and direct the Fish and Wildlife Service (FWS) to develop a permitting process for “incidental take” through which relevant businesses would implement best management practices and document compliance, further driving innovation in how to best prevent bird deaths.
Audubon is advocating for the bill to be reintroduced during this Congress and passed. We are also pushing for the administration to start a new rulemaking process to establish a permitting program under the MBTA. Together, these actions will strengthen the MBTA from future attacks and offer stability and certainty for birds and businesses.
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