The Washington PostDemocracy Dies in Darkness

Trump weakened an iconic law that protects birds. Biden just moved to restore it.

The Biden administration proposed a rule that would punish people and companies that accidentally kill birds, erasing Trump’s decision to forgive the deaths

Birds fly near the West Wing and the Washington Monument in November 2020. (Jabin Botsford/The Washington Post)

Months after the Trump administration weakened the Migratory Bird Treaty Act, allowing industry and individuals to unintentionally kill any number of birds, the Biden administration proposed a new rule Thursday that would revoke that change.

The proposal announced by the Interior Department would restore protections under the 102-year-old law that governed incidental take, or accidental killings of birds by people and organizations such as oil and gas companies that fail to take proper precautions to not harm the animals.

“The Migratory Bird Treaty Act is a bedrock environmental law that is critical to protecting migratory birds and restoring declining bird populations,” Interior Secretary Deb Haaland said in a statement. “Today’s actions will serve to better align Interior with its mission and ensure that our decisions are guided by the best-available science.”

Days before President Donald Trump left the White House, Interior finalized a rule on Jan. 7 that it had sought to enact for four years. Based on a U.S. Fish and Wildlife Service solicitor’s opinion, the department said accidents resulting in bird deaths are not prohibited by the act. For example, it said, a person who destroys a structure such as a barn full of baby owls in nests is not liable for killing them. It ordered wildlife police to ignore what had been a crime.

Even catastrophic events such as the 2010 Deepwater Horizon oil spill in the Gulf of Mexico off Louisiana that destroyed or injured up to 1 million birds could not be punished. In the past, “the department has pursued MBTA claims against companies responsible for oil spills that incidentally killed or injured migratory birds. That avenue is no longer available,” the Trump administration said.

Tracking Biden's environmental actions

Oil companies were the greatest beneficiaries of the Trump interpretation, according to an analysis by the Audubon Society. They were responsible for 90 percent of incidental takes prosecuted under the act, resulting in fines of $6,500 per violation. Two disastrous oil spills, Deepwater Horizon in 2010 and the Exxon Valdez oil tanker wreck off Alaska in 1989, accounted for 97 percent of the fines, according to the Audubon Society.

The Independent Petroleum Association said it was disappointed in the proposal. “Repealing this provision will not have the desired outcome of additional conservation but will, in fact, financially harm businesses who have an incidental take through no fault of their own,” Mallori Miller, the group’s vice president of government relations, said in a statement.

In another statement, Amy Emmert, a senior adviser for the American Petroleum Institute, said that “the natural gas and oil industry is committed to the protection of migratory birds, and our members engage in safety and conservation actions that both protect wildlife and ensure responsible development throughout their operations.”

Emmert said the group hopes to work with Interior to craft a new rule. “As the facts show, natural gas and oil operations are not a primary threat to bird populations, and we will continue to support policies that enhance environmental protection and safe, responsible energy development,” she said.

Skyscrapers, cars, power lines and cats, among other things, are responsible for taking hundreds of millions of birds per year, according to analysis by groups such as the American Bird Conservancy. But industry kills thousands of birds yearly when it can better protect them, authorities say.

“We’re confident in the Biden administration’s commitment to both bring these protections back and to strengthen them,” said Sarah Greenberger, senior vice president of conservation for Audubon. “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 long-standing protections and providing the certainty industry wants.”

The Migratory Bird Treaty Act was enacted in July 1918 after several species of common birds became extinct. The Trump administration’s action reversed decades of efforts by Republican and Democratic administrations to protect the animals as they navigate the globe. The law covers such disparate birds as eagles, red knots, Canada geese and vultures.

Eight state attorneys general and numerous conservation groups challenged the Trump administration in court after it proposed to change enforcement of the act. New York State Attorney Barbara Underwood called the administration’s reinterpretation “yet another giveaway to special interests at the expense of our states.”

In August, U.S. District Judge Valerie E. Caproni issued an opinion that invalidated the Trump administration’s interpretation of “takings” and “killings” of birds under the act as applying only if the animals are specifically targeted.

Caproni cited Harper Lee’s novel “To Kill a Mockingbird” as she struck down the solicitor’s opinion. “There is nothing in the text of the MBTA that suggests that in order to fall within its prohibition, activity must be directed specifically at birds,” Caproni wrote. “Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only ‘some’ kills are prohibited.”

“Migratory bird conservation is an integral part of the U.S. Fish and Wildlife Service’s mission,” said the agency’s principal deputy director, Martha Williams. “We have heard from our partners, the public, tribes, states and numerous other stakeholders from across the country that it is imperative the previous administration’s rollback of the MBTA be reviewed to ensure continued progress toward common-sense standards that protect migratory birds.”

correction

An earlier version of this story reported that the Migratory Bird Act was enacted in 2018. It was enacted in 1918. This story has been corrected.

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