U.S. restores penalties on killing of migratory birds
The Biden administration finalized 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 U.S. 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,” Haaland told reporters in a call Wednesday.
After formally publishing the new rule in the Federal Register, officials said, the administration plans to solicit public com
ments and host virtual meetings on ways to improve the act’s implementation. Enforcement will resume once Wednesday’s action goes into effect after 60 days, officials said.
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,” 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 group. The industry’s operations accounted for 90% of cases prosecuted under the law, with fines of $6,500 per violation. Two oil spills, Deepwater Horizon in 2010 and Exxon Valdez in 1989, accounted for 97% of fines, the analysis found.
Erik Schneider, a policy manager at the National Audubon Society, called the new rule an “important first step” to protect imperiled 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.”
The Trump administration first tried to overhaul interpretation of the Migratory Bird Treaty Act with a December 2017 solicitor’s opinion. In August 2020, a federal judge struck down the maneuver as illegal.
The Trump administration followed up with a November analysis that found the new interpretation would not cause unacceptable environmental harm. But Haaland announced plans to reverse the Trump policy in May, saying the move would “ensure that our decisions are guided by the bestavailable 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 recognized,” 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.”
Wind turbine blades can also lead to 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.
Some researchers have said that cats in the U.S. kill the most birds.