The Trump administration today released the final version of its revisions to the Migratory Bird Treaty Act that greatly weaken the protections to the foundational wild bird protection law that dates back to 1918.
The proposed policy would cement a controversial 2017 legal opinion issued by Department of Interior Solicitor Daniel Jorjani, a former Koch advisor, that said the act — which allows for fines of up to $15,000 per bird death — applied only to intentional killings.
For decades, the law has been used to hold companies accountable for killing birds in oil spills and other environmental disasters, most notably in the 2010 Deepwater Horizon explosion that is estimated to have killed more than a million birds. But under the new rule, businesses would no longer be held responsible for unintentional deaths, such as when birds get stuck in uncovered oil pits, struck by wind turbines, or bulldozed by construction crews.
An investigation by the New York Times found that in the wake of Jorjani’s legal opinion, the US Fish and Wildlife Service had largely stopped investigating bird deaths and discouraged local governments and businesses from taking precautionary steps to protect birds.
Environmental groups, some of which have already sued over the policy change, say businesses will be less incentivized to take even simple precautionary measures like installing red lights on communication towers or removing bird nests before building atop important habitat.
The US Fish and Wildlife Service has charged ahead with the revisions in the waning days of the Trump presidency, even though a federal judge ruled in August 2020 that the legal opinion which serves as the basis for the rollback does not align with the intent and language of the 100-year-old law.
The revision — which will be published in the federal register on January 7 and will go into effect 30 days after that — also comes at a time when scientists have raised alarm over the loss of 3 billion North American birds over the past 50 years.
“This brutal blow hits America’s birds when many populations are already plummeting, so it’s really the last thing they need,” Noah Greenwald, endangered species director at the Center for Biological Diversity, said in a statement. “Vast numbers of birds will be electrocuted by power lines, drowned in oil waste pits, and killed in other easily preventable ways.”
Conservation groups are already gearing up to again challenge the ruling and are considering their legal options. Given that a federal court already weighed in the environmentalists’ and the act’s favor last year, they believe that the legal odds are in their favor.
“This brazen effort will most certainly be in vain as the administration already found out in court that it can’t unilaterally gut the Migratory Bird Treaty Act and its obligation to protect and conserve birds,” Sarah Greenberger, National Audubon Society’s senior vice president for conservation policy, said in a statement today.
Audubon is recommending that the Biden-Harris administration begin a process to reinstate MBTA protections when it assumes office on January 20 and that the new Congress pass the proposed Migratory Bird Protection Act (HR5552) — that seeks to affirm the Migratory Bird Treaty Act’s prohibition on the unauthorized take or killing of migratory birds.
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