Biden Administration Moves One Step Closer to Reinstating Migratory Bird Protections

New rulemaking should be the beginning of a multi-front effort to respond to the loss of 3 billion birds.
Wood Duck. Mark Hainen/Audubon Photography Awards

WASHINGTON – “Reinstating Migratory Bird Treaty Act protections is a critical step, and at a time when we have lost 3 billion birds in North America since 1970 and climate change threatens extinction for two-thirds of bird species, it is a baseline for what we should be doing for birds,” said Sarah Greenberger, senior vice president of conservation policy, National Audubon Society. “Birds are telling us they are in trouble and we are running out of time to act.”

Days before World Migratory Bird Day (May 8, 2021), the Biden administration has begun a new rulemaking process to formally withdraw the Trump administration’s rule removing incidental take protections from the Migratory Bird Treaty Act. In March, the administration rescinded the “M-Opinion,” a legal directive implemented by the Trump administration which a federal court struck down last year.

“We’re confident in the Biden administration’s commitment to both bring these protections back and to strengthen them,” said Greenberger. “We hope to see the administration follow quickly with another rulemaking 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.”

The change by the Trump administration was aimed at limiting 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.

New science has revealed the loss of 3 billion birds in North America since 1970 and that two-thirds of North American birds are at risk of extinction due to climate change.

“We need a multi-front approach to ensure the MBTA remains as a strong foundation for bird protection well into the future,” said Erik Schneider, policy analyst, National Audubon Society. “In addition to action by the administration, we hope to see the Migratory Bird Protection Act reintroduced and passed in this Congress. Together, these actions will strengthen the MBTA from future attacks and offer stability and certainty for birds and businesses.”

The Migratory Bird Protection Act was passed out of the House Natural Resources Committee in the 116th Congress and had a bipartisan group of more than 90 co-sponsors. The bill 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. It would need to be reintroduced in this Congress in order to be considered again.


The National Audubon Society protects birds and the places they need, today and tomorrow. Audubon works throughout the Americas using science, advocacy, education, and on-the-ground conservation. State programs, nature centers, chapters, and partners give Audubon an unparalleled wingspan that reaches millions of people each year to inform, inspire, and unite diverse communities in conservation action. A nonprofit conservation organization since 1905, Audubon believes in a world in which people and wildlife thrive. Learn more at and on Facebook, Twitter and Instagram @audubonsociety.

Media Contact: Matt Smelser