With two weeks left in office, on National Bird Day, the Trump administration—defying opposition from the general public, scientists, tribal governments, international treaty partners, and a federal judge who last summer all but laughed its legal arguments out of court—today announced it has finalized a rule allowing companies and individuals to kill migratory birds as long as they didn’t mean to.
Conservation groups blasted the decision as a desperate attempt by the administration to give industry a free pass to kill birds on its way out the door. “Secretary Bernhardt’s former oil industry clients have explicitly asked for this policy change, and now he is delivering, just days before returning to the private sector,” said Jennifer Rokala, executive director of the Center for Western Priorities, in a statement referring to Secretary of the Interior David Bernhardt, a former lobbyist for the energy industry. “By finalizing this proposal, the Trump administration is signing the death warrants of millions of birds across the country.”
Opponents also say the rule stands little chance of survival under the incoming Biden administration. “Even though a federal court already ruled that the Trump administration cannot eliminate protections for migratory birds, the administration continues its relentless campaign to undermine environmental protections and harm wildlife,” said Jamie Rappaport Clark, president and CEO of Defenders of Wildlife, in a statement. “The new regulation, issued as the Trump administration is leaving office, is illegal and will not stand.”
The U.S. Fish and Wildlife Service (FWS), the branch of the Interior Department that oversees bird management, stood by the rule and the steps taken to finalize it. “The Trump administration is committed to using science and the law as the foundation of our decisions at the Service,” said Aurelia Skipwith, the agency’s director, in a press release. “Employing an open and transparent public process to finalize today’s action emphasizes our dedication to conservation of migratory birds and to providing regulatory certainty.”
Not long after taking office the Trump administration began working to dismantle the Migratory Bird Treaty Act, passed in 1918, which makes it illegal to pursue, hunt, shoot, wound, kill, trap, capture, or collect migratory birds or their eggs or nests—or attempt to do so—without a permit. For decades the FWS, under both Republican and Democratic presidents, interpreted the rule to prohibit “incidental take”—the unintentional but predictable killing of birds, often at industrial sites. The FWS typically enforced only egregious cases of incidental take, such as when it levied a $100 million fine against BP for the deaths of an estimated one million birds in its 2010 Gulf of Mexico oil spill. But the threat of prosecution gave the government leverage to urge companies to adopt often simple and inexpensive practices to prevent avian deaths, such as covering oil pits and spacing power lines far enough apart to avoid electrocuting raptors.
But in 2017, Daniel Jorjani, the Interior Department’s top lawyer, issued a legal opinion stating that the MBTA prohibits only intentional killing of the nearly 1,100 bird species it covers, not incidental take. In response, 17 former interior secretaries sent Ryan Zinke, then in charge of the department, a letter urging him to abandon the interpretation. Conservation groups and states sued the department, arguing that its policy clearly violated the MBTA’s purpose. But as the administration has worked to cement its position with a formal rule—which will be harder than Jorjani’s opinion for the Biden administration to sweep away—the FWS has allowed incidental take to go unpunished.
Interior has pushed through substantial public opposition on the road to finalizing the new rule. More than 99 percent of the comments submitted in response to a draft version of the rule were opposed. Several tribes have spoken out against the rule. “Many species of migratory birds hold deep cultural and sacred meaning to the Tribe,” representatives of the Snoqualmie Indian Tribe wrote in public comments in June. “It is incomprehensible that the industry responsible for killing birds will be able to avoid any criminal accountability merely because they did not purposely set out to kill migratory birds.” Three of the four Flyway Councils—administrative bodies that facilitate coordination among wildlife agencies—representing the majority of states and Canadian provinces submitted formal comments opposing the rollback.
Worry over the rule’s impacts extend beyond this country’s borders. A 1916 agreement between the United States and Canada preceded and is implemented through the MBTA, and that country has expressed serious concerns about the Trump administration’s shift away from protecting birds, including the lack of data-based evidence to inform its position. “Almost 80 percent of Canada’s migratory birds migrate through or reside in the United States during parts of their life cycle, which means ongoing collaboration between the two countries is critical to protect these important populations,” said Jonathan Wilkinson, Canada’s minister of environment and climate change, in a statement last month. “Our countries share a long history of partnership, and we must continue to work together to protect migratory birds for future generations.”
Even Interior’s own analysis found that implementing the rule could push some bird species onto the endangered species list at a time when scientists say North America has lost more than 3 billion birds over the past half-century.
The biggest roadblock for the administration came last August, when U.S. District Judge Valerie Caproni took its lawyers to task, striking down Jorjani’s “unpersuasive” reading of the law, which she said unmistakably makes it illegal to kill birds, on purpose or otherwise. Interior’s interpretation of the MBTA was not only obviously wrong, she wrote, but would create an unacceptable situation in which “migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”
Nonetheless, the administration continued working to enshrine its discredited position as official policy, and has said it will appeal the ruling. “It's completely insane. Instead of stepping back, taking this major court decision in, and changing course, they only doubled down,” says Erik Schneider, policy manager for the National Audubon Society, among the groups whose lawsuit prompted Caproni’s decision. “It’s a very well-reasoned takedown of this policy, but they are just flouting it. I think that’s part of the reason why I’m optimistic that ultimately this new attack on the MBTA won’t succeed in the end.”
A waiting period before the rule takes effect means it won’t officially be in place before the Biden administration takes office. The president-elect hasn’t made public pronouncements about the MBTA, but his administration could opt to overturn the new rule. In addition, the new Congress could take back up the Migratory Bird Protection Act, a bill that federal lawmakers considered last year but didn’t pass. That bill would affirm that the MBTA prohibits incidental take, and would set up a permitting program that would protect companies from legal action for incidental take, so long as they adopt recommended practices and technologies that have been shown to significantly reduce bird injuries and deaths.
Such a permitting program represents a measured approach that would protect birds and give businesses certainty that they’re on safe ground, Schneider says. The Trump administration could have pursued a permit program of its own but instead chose to gut the century-old law's protections—a decision Schneider says it’s essential to reverse. “We’re not going to succeed in addressing the crisis facing birds and other wildlife if we let this and other historic rollbacks stand.”