This critical law saves millions of birds' lives each year.
Photo: Don McCullough/Flickr Creative Commons
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 are 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. The penalties create a helpful incentive to remind companies to do the right thing for wildlife.
Every Republican and Democratic administration since the 1970s has applied the law to avoidable industrial hazards, which has saved countless numbers of birds. But in 2017, the Trump Administration began a process to weaken the law.
Through the simple change of a legal opinion, the administration overturned decades of bipartisan precedent to say that the MBTA’s protections apply 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—becomes immune from enforcement under the law.
For example, if the administration’s interpretation of the law were 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.
How We’re Fighting Back
This reversal has 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 administrations 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 MBTA is still under threat. The Trump administration is racing to finalize a process to weaken the same protection through a regulation 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. If the administration finalizes the rule before the end of its term, legal challenges are expected.
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.
At the same time, Congress is taking action. A bipartisan group of more than 90 members of the U.S. House of Representatives has 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.
No matter what happens, it is possible for either Congress or a future administration to reverse this damaging rollback.
Photo: Kim Hubbard/Audubon
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