This month, the Trump administration marked the law's centennial by announcing a broad reinterpretation that will make it more difficult to hold those who kill the animals accountable.
For decades, the law gave federal officials broad power to prosecute those who kill migratory birds, even by accident. But President Trump's Interior Department issued new guidance to federal wildlife police specifying that “the take” — or, killing — of birds is not banned by the law “when the underlying purpose of that activity is not to take birds.” Darryl Fears and I reported late Friday.
In other words, accidentally killing birds — for instance, during oil spills — no longer breaks the law.
That matters because the law was instrumental in prosecuting BP after the collapse of the Deepwater Horizon offshore drilling rig in 2010 and Exxon after the crash of the Exxon Valdez oil tanker in 1989, both of which resulted in massive maritime spills that killed thousands of birds.
The U.S. Fish and Wildlife Service, a division of the Interior Department, explains its thinking by way of example. For instance, if a person destroys a structure such as a barn while knowing baby owls are nesting inside, he is no longer liable under the law. “All that is relevant is that the landowner undertook an action that did not have the killing of barn owls as its purpose,” the opinion said.
However, if a landowner uses illegal pesticides expressly to kill birds, the law would apply. Still, the opinion said, “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.”
The Fish and Wildlife Service also offered examples involving ranchers and construction workers. Left unmentioned in those examples were energy producers operating wind turbines or oil tankers that end up killing birds. "I’m sure they stayed away from those examples because it would throw gasoline on the fire,” Paul Schmidt, an assistant director of migratory birds at Fish and Wildlife for eight years starting in 2003, said Friday. Schmidt opposes the change to longstanding interpretation of the law.
Outside major disasters, the law has often been used as leverage in negotiations between government officials and private companies. "Discretion,” Schmidt told The Post in January, “has been successfully used to change corporate behavior to minimize takes."
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.”
Under the new interpretation, Interior would pursue penalties against companies that spill oil under a different legal framework — Natural Resources Damage Assessment program, which 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 law was enacted after several species of common birds, such as the passenger pigeon, became extinct. The new interpretation reverses decades of action by Republican and Democratic administrations to protect the animals as they navigate the globe. The law covers birds as disparate as eagles, red knots, Canada geese and vultures.
According to an analysis by the Audubon Society, oil companies were responsible for 90 percent of incidental takes prosecuted under the act, resulting in fines of $6,500 per violation.
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 the Trump administration announced it was considering the move 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.
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— Pruitt probe expands: House Oversight Chairman Rep. Trey Gowdy (R-S.C.) has asked for sit-down interviews with five individuals associated with EPA chief Scott Pruitt in his latest letter on Friday. Gowdy called for interviews with Pruitt's head of security Pasquale Perrotta, chief of staff Ryan Jackson, aide Millan Hupp, senior counsel Sarah Greenwalt and former Trump campaign aide Kevin Chmielewski. In his Friday letter, Gowdy also called for additional records about Pruitt’s travel itineraries and receipts and memos related to his security detail, The Post’s Brady Dennis and Juliet Eilperin report.
Meanwhile, a new report is forthcoming: The EPA's inspector general will release Monday the interim results of the probe into whether Pruitt’s improperly used emergency hiring authority through the Safe Drinking Water Act to hire personal aides. “It’s unclear whether the IG has expanded that probe to include a recent controversy around EPA’s use of the same water law to grant raises to the two Pruitt aides despite the White House’s disapproval,” Politico reports.
— Try being a "monk" instead: Gowdy said in a Fox News Sunday interview Pruitt should consider becoming a “monk” in order to avoid problems when traveling. "If you sit first class, you're guaranteed to come into contact with everybody else on the plane. If you really want to avoid everybody on the plane, sit in the last seat, not the first seat,” Gowdy said, responding to the EPA’s insistence that Pruitt has flown first-class due to security concerns. “The notion that I’ve got to fly first class because I don’t want people to be mean to me, you need to go into another line of work if you don’t want people to be mean to you. Like maybe a monk.”
— Coal boss vs. the GOP: The Republican establishment is working on a plan to stop coal baron Don Blankenship from winning the nomination in the West Virginia Senate primary. The intervention plan, Politico reports, includes a six figure TV ad going after Blankenship, charging his company with contaminating drinking water by pumping “toxic coal slurry.” “The national party isn’t promoting its role in the group, but its fingerprints are all over it,” Politico notes. Blankenship was convicted of conspiring to violate mine safety and health standards following a 2010 mining accident that killed 29 workers.
— What a D.C. lawmaker’s inbox looks like after saying the Rothschilds control the climate: After D.C. Council member Trayon White Sr. claimed a Jewish banking family controls the climate, he sparked outrage for repeating an anti-Semitic conspiracy theory but also garnered praise from people who said they shared his views. “Takes quite a bit of courage to be in a public position to tell the truth,” an anonymous person emailed White, per The Post’s Fenit Nirappil who got the emails via a public records request.
— A planning failure in Puerto Rico: The Federal Emergency Management Agency significantly underestimated the havoc Hurricane Maria was going to wreak on Puerto Rico, and in the aftermath relied too much on local officials and private companies to take care of the cleanup, Politico reports. The plan a FEMA contractor established in 2014 in anticipation of a major storm “prepared for a Category 4 hurricane and projected that the island would shift from response to recovery mode after roughly 30 days.” More than six months later, the U.S. territory is just now approaching that recovery mode.
— The shipping industry is finally going to cut its climate change emissions: The International Maritime Organization, the United Nations group tasked with regulating international waters, on Friday adopted a first-ever strategy to combat climate change. The plan aims to lower emissions from container ships, oil tanker, bulk carriers and other vessels by at least 50 percent by 2050 compared with 2008 levels, The Post's Chris Mooney reports. The United States, however, reversed its stance on the strategy and objected to how responsibilities would be divided between developed and developing countries, he adds.
— March for Science returns: Thousands of people marched on the Mall in Washington on Saturday for the second annual March for Science. Nearly 250 rallies were planned throughout the country and the world to send a message about the importance of facts, science and research in policy decisions, The Post’s Marissa J. Lang reports. While not as big as last year's event, Caroline Weinberg, interim director of the March for Science, told The Post to focus less on "optics." “People wanting to know, ‘Is the crowd as big as last year?’ When the truth is it doesn’t have to be the same," she said. "A huge part of our focus is making sure people continue to be empowered to create change throughout the year and all around the country."
— Trump’s trade moves: In an effort to ease concerns among farmers jolted by the U.S.-China tariff tensions, President Trump announced a move to boost ethanol. “We’re going to raise it up to 15 percent and raise it to a 12-month period,” Trump said, per The Post’s Mooney and Steven Mufson. He was seemingly referring to E15, “a motor fuel containing 15 percent corn-based ethanol,” Mooney and Mufson write. “Currently, E15 cannot be sold year round because of seasonal air pollution concerns. Under the federal Renewable Fuels Standard, fuel at the gas pump today usually contains only 10 percent ethanol.” Trump seemed to suggest allowing year-round sales of the fuel.
— Saudi Aramco is more profitable than Apple: That's according to numbers seen by Bloomberg News ahead of the Saudi-owned oil company's proposed initial public offering. During the first half of 2017, Aramco had a net income of $33.8 billion — about $5 billion more than Apple and more than four times as much as ExxonMobil or Shell during that same time period. "The company is almost totally free of debt and enjoys production costs running at a fraction of the industry standard, the figures show," Bloomberg News also reported. A company spokesman called the figures "inaccurate."
- The Senate Energy and Natural Resources Committee holds an oversight hearing on the operational needs of the National Park Service on Tuesday.
- The House Transportation and Infrastructure Subcommittee on Railroads and Hazardous Materials holds a hearing on the oversight of the Surface Transportation Board Reauthorization Act of 2015 on Tuesday.
- The House Science, Space and Technology Committee holds a markup on Tuesday.
- Politico holds an event on the future of renewable energy on Tuesday.
- The Center for Strategic and International Studies holds a discussion on addressing climate change on Tuesday.
- The House Energy and Commerce Subcommittee on Energy holds a hearing on FERC oversight on Tuesday.
- The House Appropriations Subcommittee on Interior, Environment and Related Agencies holds a hearing on the U.S. Forest Service 2019 budget on Wednesday.
- The Senate Environment and Public Works Committee holds a hearing on protecting groundwater on Wednesday.
- Senate Appropriations Subcommittee on Energy and Water Development holds a hearing on the budget estimates for 2019 for the Army Corps of Engineers and Bureau of Reclamation on Wednesday.
- The Energy Department’s Office of Energy Efficiency and Renewable Energy holds a webinar on Thursday.
- The Johns Hopkins School of Advanced International Studies holds an event on the environmental risks of oil and gas retrieval on Thursday.
- The Senate Energy and Natural Resources Committee holds a hearing on rural energy challenges and opportunities on Thursday.
- Columbia University’s Center on Global Energy Policy’s annual energy summit is on Thursday.
- The Federal Energy Regulatory Commission holds a hearing on Thursday.
— Dark skies: The Interior Department tweeted to kick off International Dark Sky Week, which goes from April 15-21 and is meant to draw attention to light pollution that obscures the stars in the night sky.