“The Trump administration is kicking off the new year and its remaining weeks by finalizing its illegal bird-killer policy,” said Sarah Greenberger, senior vice president for conservation policy, National Audubon Society. “This brazen effort will most certainly be in vain as the administration already found out in court that it can’t unilaterally gut the Migratory Bird Treaty Act and its obligation to protect and conserve birds.
On January 5, 2020, the Department of the Interior released its Record of Decision (ROD) in the last step to strip away critical protections in the Migratory Bird Treaty Act (MBTA). The effort has received widespread and bipartisan opposition including from members of Congress, more than 25 states, numerous tribal governments, scientists, sportsmen, birdwatchers, and 250,000 people who submitted comments opposing the proposed rule change. In August, a federal court invalidated the policy that serves as the legal foundation for the regulatory effort, for which the administration is seeking an appeal.
“Through the courts, Congress, and administrative action, it is critical we do everything we can to not only reinstate the full protections of the Migratory Bird Treaty Act, but also protect it from similar attacks in the future,” said Greenberger.
The Biden-Harris administration should begin a process to reinstate MBTA protections as well as adding an approach for reasonable permitting under the law. For its part, the new Congress should pass the Migratory Bird Protection Act to clarify these longstanding protections and authorize this common-sense approach. The bill was passed out of the House Natural Resources Committee in the 116th Congress and had a bipartisan group of 90+ co-sponsors.
“As the Trump administration moves to make it easier to kill birds, tens of thousands of bird-lovers across the Western Hemisphere are wrapping up the 121st Audubon Christmas Bird Count, an annual census of birds,” said Greenberger. “We just learned that despite record participation in 2019, six million fewer birds were recorded. While we don’t yet know exactly what caused this decrease it comes amid new science showing alarming trends in bird declines, like the loss of 3 billion birds in North America since 1970.”
The finalized rule change overturns decades of bipartisan precedent, so that the MBTA’s protections only apply to activities that purposefully kill birds, exempting all industrial hazards from enforcement. Any “incidental” death—no matter how inevitable, avoidable or devastating to birds—becomes immune from enforcement under the law.
For example, if the administration’s interpretation of the law were in place in 2010, BP would have faced no consequences under the MBTA for the more than one million birds killed in the Deepwater Horizon oil spill. BP ended up paying $100 million in fines thanks specifically to protections in the MBTA that have been eliminated by the Trump Administration.
A coalition that included the National Audubon Society won a lawsuit invalidating the administration’s legal opinion which was used to create this new rule, contributing to the reasons that when challenged in court, this new rule should be invalidated. Audubon and other groups will use the coming days to consider their legal options.