In a move largely beneficial to the oil and gas industry and electric utilities, the Trump administration is proposing to cement through rulemaking its unlawful policy rolling back significant protections for migratory birds under the Migratory Bird Treaty Act.
Passed in 1918, the law prohibits the “taking, possessing, importing, exporting, transporting, selling, purchasing, or bartering” of these migratory birds without a permit.
For decades, the U.S. Fish and Wildlife Service has applied the prohibition to include activities that incidentally kill migratory birds, and has enforced violations of the law in relation to major environmental disasters like the Deepwater Horizon and Exxon Valdez oil spills. This ensured that agencies and private industry worked together to implement common-sense strategies to mitigate harms to migratory birds.
“Eliminating sensible measures against killing birds incidental to industrial activities is not only unlawful, but will hasten the decline of a species already facing multiple threats like climate change.”
—Senior Attorney Amelia Burnette
“The Trump administration is reversing course on decades of understanding by federal agencies, and pushing ahead with weakening protections under the Act for migratory birds,” says Senior Attorney Amelia Burnette. “Eliminating sensible measures against killing birds incidental to industrial activities is not only unlawful, but will hasten the decline of a species already facing multiple threats like climate change.”
The proposed rulemaking suffers from several legal flaws, including skirting the review and public disclosure requirements under the National Environmental Policy Act. SELC and more than 50 regional partner organizations called out those inadequacies in comments submitted to the Fish and Wildlife Service on March 19.
“Our region contains more remaining wetlands than anywhere else in the country and is home to one of the few remaining blocks of un-fragmented forest in the eastern United States, supporting ‘very high densities of forest breeding birds,’” the submitted comments state. “Our work would be adversely affected by this Proposed Rule, as it would codify the elimination of important protections for migratory bird species that we rely on to ensure projects and industrial operations do as little damage to these resources as possible.”
Migratory bird species have already been in steep decline from multiple stressors, including the effects of climate change and habitat loss. Many species are already at risk of extirpation and face an uphill road to recovery.
And that’s despite protections that existed for decades against incidental take—or take that results from an activity, but is not the purpose of that activity—in place under the Migratory Bird Treaty Act. The Fish and Wildlife Service’s latest proposal will hasten the decline of migratory birds and can’t be squared with the broad protections afforded by the Act.
SELC’s comments call on the Department of the Interior and Fish and Wildlife Service to withdraw the Proposed Rulemaking that reflects neither a legal nor sensible strategy for ensuring protections for migratory birds, and work instead on an appropriate regulatory program addressing the species’ foreseeable incidental killing and taking.
SELC is monitoring the situation closely.