The Trump administration’s planned rewrite of a century-old law meant to protect birds would leave more of them dead and likely push additional species onto the endangered list, according to a new government analysis.
Previous administrations interpreted the Migratory Bird Treaty Act (MBTA) to outlaw not only purposely killing or injuring any of the birds it protects—nearly 1,100 species—but also their unintended but predictable harm, often at the hands of energy producers and other industries. But the U.S. Fish and Wildlife Service (FWS) stopped enforcing this so-called “incidental take” after the Interior Department’s top lawyer issued a controversial legal opinion in late 2017 that the MBTA only covered intentional acts. In January, the administration moved to firm up that legal opinion by proposing it as a formal rule.
The draft environmental impact statement (EIS), issued last week by the FWS, is a step in that rulemaking process required by federal law for any government action that will have a significant impact on the environment. It’s supposed to present an evenhanded analysis of a proposed action’s positive and negative environmental effects and give serious consideration to reasonable alternatives.
But as conservation groups see it, the new document ignores expert input from scientists and others who oppose the rule change. It also mentions but brushes aside one option they see as a good alternative: a permitting program that would guard companies from legal action over bird deaths, as long as they implement best practices to prevent them. “I think the draft EIS is a failure in every way,” says Erik Schneider, policy manager for the National Audubon Society. He also argues that it’s inappropriate to request further public comment during a pandemic.
Schneider and other critics of the proposed policy say it’s particularly maddening that, to justify the rollback, the government’s analysis appears to suggest that there would be benefits to having fewer birds in the world. It notes, for example, that birds cost food growers money by eating crops and farmed fish, and can spread diseases such as avian flu. And as Bloomberg Law reported, it also calls potential aircraft strikes “a major concern,” citing as an example the 2009 collision with Canada Geese that forced U.S. Airways Capt. Chesley “Sully” Sullenberger to land a plane on the Hudson River in New York. Bird collisions with aircraft have indeed increased in recent years, but airports routinely work with wildlife management professionals to manage the problem. “It’s absurd that they found it necessary to cite a plane accident and include an entire section about ‘detrimental impacts of migratory birds’ when analyzing the environmental impacts of eliminating bird protections,” Schneider says.
The draft EIS analyzed two alternatives to its preferred policy change: keeping the department’s legal opinion in place without a more durable formal rule, or scrapping that opinion and once again prohibiting incidental take—a path that the FWS reports would lead to fewer bird deaths. “It's jarring to see that the Fish and Wildlife Service, whose mission is listed on the first page as working to conserve, protect, and enhance wildlife, and has statutory and treaty obligations to protect migratory birds, prefers the option that it admits will lead to the most bird mortality,” Schneider says.
Steve Holmer, vice president of policy for the American Bird Conservancy, says the administration’s case for the rule change is seriously undermined by FWS's conclusion that the alternative of reverting to the earlier, longstanding interpretation of the MBTA regarding incidental take would save birds and the free but valuable services they provide, such as pollinating plants and controlling disease-carrying insects and agricultural pests. “They have an alternative there that shows their policy is harmful and going back to the previous policy would be beneficial for birds,” he says. “It’s kind of a compelling case not to go where they’re going.”
The reason the rule change would increase bird deaths is that industrial operators would likely abandon efforts to reduce harm, the draft EIS says. Before the Trump administration backed away from enforcing incidental take, the possibility of prosecution gave companies an incentive to implement industry best practices, such as installing nets to keep waterfowl out of oil pits or spacing electric wires wider than a large raptor's wingspan to prevent electrocutions.
While some industrial players may continue doing so out of a commitment to sustainability or to comply with other laws, “we expect the implementation of best practices to be further reduced over time, resulting in increased environmental impacts in the long-term,” the document says. “For example, one best practice applied to many industries, like highway construction, is to avoid construction and vegetation clearing during migratory-bird nesting season in appropriate habitat. There is a cost to delaying projects until after nesting season, and some operators may choose to avoid such costs with no threat of enforcement under the MBTA.”
The analysis doesn’t put a number on how many more birds will die under the proposed rule, but it makes it clear that those losses would exacerbate the already rapid deflation of bird populations. A recent study found that there are roughly 3 billion fewer birds in North America than there were half a century ago, the draft EIS notes. It also cites a 53 percent decline in grassland bird populations from 1970 to 2017, a period during which eastern and western forest bird numbers fell by 17 percent and 29 percent respectively. Human actions drive these losses, both indirectly through habitat loss and climate change, and directly through industrial activity, building collisions, and other hazards. Formally restricting the MBTA’s reach to intentional killing “may increase [the] rate and severity of cumulative anthropogenic effects on birds,” the document says.
As a result, more species may be driven onto the endangered species list. “As birds of conservation concern and other vulnerable bird species face likely negative effects from [the proposed change], some may decline to the point of requiring listing,” the FWS reports.
The public has until July 20 to provide comments that the FWS will consider before issuing a final EIS in the fall. Easing protections for birds might not be as simple as the industry-aligned Trump administration would like, however. Audubon, other conservation groups, and eight states continue to challenge the administration’s interpretation of the MBTA in court. Meanwhile, states have begun asserting their own authority to prosecute unintended but egregious bird killing, and Congress is considering the Migratory Bird Protection Act, which would clarify that incidental take is illegal and set up a permit program to promote bird-saving best practices.
That bill could see a vote on the House floor as soon as next month, Holmer says. “We see that as an antidote to this policy,” he says. “It’s really crucial that we stop what they're doing.”