News | March 23, 2020

Administration pushes ahead with rollback weakening protections for migratory birds

UPDATE (7/22/20) — This week, SELC submitted comments on the many deficiencies of the recently-released draft environmental impact statement for the Fish and Wildlife Service’s proposal to codify its recent, unlawful policy change rolling back significant migratory bird protections.

The fundamental purpose of an agency’s environmental impact statement is to provide an analysis that informs the public and decisionmakers of the environmental consequences of its proposal. In its comments, SELC highlights how the brief environmental impact statement falls short of these purposes, omitting important scientific data and considerations previously raised by SELC.

“This draft leaves the agency and the public uniformed about the consequences of stripping away protections for migratory birds,” wrote Senior Attorney Amelia Burnette in the comments, which SELC submitted on behalf of more than 35 organizations that work to protect and restore the natural environment in the Southeast.

Adds Burnette, “If the agency looked hard at its proposed action, as it must, it would see the environmental costs will be severe and far-reaching, particularly for those species already in steep decline.”

The costs of this proposal will come not only to migratory birds, but also to the ecosystems, economies, and communities who depend on a healthy environment.

For more details on the proposal and SELC’s analysis of the draft environmental impact statement, click here.

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.

Amelia Burnette, Senior Attorney

“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.

SELC condemns administration plan to dismantle Endangered Species Act

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.