The MBTA will no longer apply even after a catastrophic event such as the Deepwater Horizon oil spill that destroyed or injured up to a million birds. After an oil spill, Interior would pursue penalties under the Natural Resources Damage Assessment program that is not specific to birds. 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 1918 law was enacted after several species of common birds became extinct; the Audubon Society and other organizations named 2018 the year of the bird in honor of the MBTA’s centennial. The new interpretation reverses decades of action 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.
Oil companies are the greatest beneficiaries of the new 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, the Deepwater Horizon off Louisiana in 2010 and the Exxon Valdez oil tanker wreck off Alaska in 1989 accounted for 97 percent of the fines.
Oil waste pits that birds mistake for ponds are also responsible for a significant number of bird deaths, as a Fish and Wildlife video shows. Each year, 500,000 to 1 million birds are lost to pits that oil companies leave uncovered.
The act “has been the tool the Fish and Wildlife Service has used to work with industry to implement basic management practices,” said Sarah Greenberger, vice president of conservation for the Audubon Society, an advocacy group that studies and protects birds. “The reason the industry covers the tar pits is the Fish and Wildlife Service’s use of the MBTA as a tool to get them to the table. Why would you spend money to implement those, why would your shareholders even allow it, if there’s no reason?”
Seventeen former Interior officials, including U.S. Fish and Wildlife directors under presidents Richard Nixon, George H.W. Bush, Bill Clinton, George W. Bush and Barack Obama, repudiated the reinterpretation when it was first announced in December.
“This legal opinion is contrary to the long-standing interpretation by every administration … since at least the 1970s, who held that the Migratory Bird Treaty Act strictly prohibits the unregulated killing of birds,” the former officials wrote in a letter to Interior Secretary Ryan Zinke dated Jan. 10.
“This law was among the first U.S. environmental laws, setting this nation and continent on the enviable path to conserving our natural resources. It was passed to implement the first of four bilateral treaties with countries with which we share migratory bird populations — Canada, Mexico, Japan, and Russia,” the letter said. “Its intent, and your obligation in enforcing it, is to conserve migratory bird populations. Therefore, we respectfully request that you suspend this ill-conceived opinion, and convene a bipartisan group of experts to recommend a consensus and sensible path forward.”
Wednesday’s guidance to Fish and Wildlife law enforcement officials who enforce the law effectively rejected that plea.
If an activity that results in the death of birds is illegal, the guidance tells police, it “does not affect the determination of whether it results in an MBTA violation.” If, for example, a landowner used illegal pesticides expressly to kill birds, the law applies. “However, if the landowner used a pesticide to purposely kill something other than migratory birds, it would not be a violation if birds die … because the purpose of the act was not (the) taking of birds.”
Outside of major disasters, the law has often been used as leverage in negotiations between government officials and private companies. But some prosecutions have earned the ire of corporate executives — including, notably, one of Trump’s billionaire backers.
In a 2011 case in North Dakota involving Continental Resources and five other oil companies, Fish and Wildlife asked the U.S. attorney there to press criminal charges because all six firms had been previously ticketed for not installing netting over their oil waste pits. However, a federal judge dismissed the criminal charges against three of the companies the following year, and vacated the settlements that the three other firms had reached with federal authorities.
The founder and chief executive of Continental Resources, Harold Hamm, served as an energy adviser to Trump during his 2016 presidential campaign. Hamm has derided regulations in general as “death by a thousand cuts.”
Paul Schmidt, an assistant director of migratory birds at Fish and Wildlife for eight years starting in 2003, said he was disappointed. “If I were a company who was putting up wind turbines or oil pits, I would feel I had opportunity to do what I need to do without being visited by a federal agent.”
Schmidt said it was telling that energy operations were not included in the list of examples in the guidance. “I’m sure they stayed away from those examples because it would throw gasoline on the fire,” he said.
The irony of watering down the act on its centennial was not lost on Greenberger.
“The MBTA sparked 100 years of conservation leadership in this country. It was one of the first conservation laws as a nation we passed and implemented,” she said. “And now after 100 years, to be walking backwards, to start a century this way, does not align with the vast majority of Americans who care and value birds and wildlife.”