Biden officials finalise a rule making it harder to kill birds, reversing Trump’s policy

The Trump administration’s reinterpretation of the 1918 Migratory Bird Treaty Act ranked as one of its most contentious wildlife policies

The Biden administration will step up enforcement to ensure companies and individuals take precautions to avoid bird deaths (Getty Images)

The Biden administration finalised a rule Wednesday revoking a Trump administration policy that eased penalties for killing birds, restoring federal protections that had been in place for a century.

The Trump administration’s reinterpretation of the 1918 Migratory Bird Treaty Act ranked as one of its most contentious wildlife policies. It relaxed legal penalties for energy companies, construction firms and land developers that unintentionally killed birds through activities such as construction and oil drilling.

The new US Fish and Wildlife Service rule would restore protections under the bedrock environmental law, which prohibits the “take” of migratory bird species – regulatory-speak for hunting, killing, capturing, selling or otherwise hurting them. Under President Donald Trump, officials had sought to exclude accidental deaths from the “take” definition, a move backed by the oil and gas industry.

Interior Secretary Deb Haaland said the new rule would protect more birds threatened by the dual crises of climate change and habitat loss. She noted that the Fish and Wildlife Service officially declared the ivory-billed woodpecker extinct Wednesday, along with 22 other species that can no longer be found in the wild.

“The specifics for each of the species’ demise vary, but the story arc is essentially the same: Humans altered their habitat in a significant way, and we couldn’t or didn’t do enough to ultimately change the trajectory before it was too late,” Ms Haaland told reporters on a call Wednesday.

“But this moment, as sobering as it is, can serve as a wake-up call. Our children and grandchildren will not know the Earth as we do unless we change the status quo,” said Ms Haaland, who is on a trip to California and visited the San Diego National Wildlife Refuge on Tuesday.

The Biden administration will step up enforcement to ensure companies and individuals take precautions to avoid bird deaths in the future, officials said, and will develop a new policy after taking public comment.

Mallori Miller, vice president of government relations at the Independent Petroleum Association of America, which represents small and midsize oil and gas companies, said the group was “disappointed” with the Biden administration’s move to reverse the Trump policy.

“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,” Ms Miller said in an email. “This is not a case of punishing ‘bad actors’ but rather a situation where companies are set up for failure.”

Oil and gas companies benefited the most from the Trump rule, according to an analysis by the National Audubon Society, a conservation organisation. The industry’s operations accounted for 90 per cent of cases prosecuted under the law, with fines of $6,500 per violation. Two disastrous oil spills, Deepwater Horizon in 2010 and Exxon Valdez in 1989, accounted for 97 per cent of the fines, the analysis found.

Erik Schneider, a policy manager at the National Audubon Society, called the new rule an “important first step” to protect imperilled bird populations, which have declined by roughly 3 billion since 1970.

“We need a significant expansion of efforts to bring birds back and protect them for the future,” he said. “It’s also critically important that we safeguard the Migratory Bird Treaty Act and improve the way that it’s implemented.”

After formally publishing the new rule in the Federal Register on Monday, officials said, the administration plans to solicit public comments and host virtual meetings on ways to improve the act’s implementation.

The Trump administration first attempted to overhaul interpretation of the Migratory Bird Treaty Act with a December 2017 solicitor’s opinion. But in August 2020, a federal judge struck down the manoeuvre as illegal.

Referring to Harper Lee’s famous novel, US District Judge Valerie E. Caproni wrote: “It is not only a sin to kill a mockingbird, it is also a crime ... but if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”

The Trump administration followed up with a November analysis that found the new interpretation would not cause unacceptable environmental harm. But Ms Haaland, the Interior secretary, announced plans to reverse the Trump policy in May, saying the move would “ensure that our decisions are guided by the best-available science.”

Kathleen Sgamma, president of the Western Energy Alliance, which represents oil and gas drillers in Western states, warned that the Biden administration’s new interpretation may not survive in court.

“The plain language of the MBTA is focused on direct hunting and killing, not accidental take, as three circuit courts have recognised,” Ms Sgamma said in an email. “By ignoring all but one circuit court ruling in this rule and hanging its hat on a district court ruling that hasn’t gone through appeal, the Biden administration is not clearing up the legal issues addressed by various circuit courts and will be legally vulnerable.”

Asked whether her group planned to challenge the new rule in court, Ms Sgamma said, “We will review the final rule before deciding next steps.”

Wind turbine blades can also lead to accidental bird deaths. The American Clean Power Association, which represents the wind and solar industry, wrote in comments to the Fish and Wildlife Service in March that its members would continue to take steps to protect birds, regardless of the federal requirements.

Aaron Weiss, deputy director of the Center for Western Priorities, an advocacy group, praised the new rule but urged the Interior Department to halt oil and gas lease sales planned in the Gulf of Mexico next month.

“It’s wonderful to move quickly to enforce the Migratory Bird Treaty Act,” Mr Weiss said. “On the other hand, how many migratory birds are going to die from the effects of pollution when they are about to auction off the rights to a billion barrels of oil?”

The Washington Post