Under Trump, U.S. is not for the birds
Nests destroyed and avians killed by oil spills, construction crews and chemicals, with few consequences from federal government
AWASHINGTON s the state of Virginia prepared for a major bridge and tunnel expansion in the tidewaters of the Chesapeake Bay last year, engineers understood that the nesting grounds of 25,000 gulls, black skimmers, royal terns and other seabirds were about to be plowed under.
To compensate, they considered developing an artificial island as a safe haven. Then in June 2018, the Trump administration stepped in. While the federal government “appreciates” the state’s efforts, new rules in Washington had eliminated criminal penalties for “incidental” migratory bird deaths, administration officials advised. Such conservation measures were now “purely voluntary.” The state ended its island planning.
The island is one of dozens of bird-preservation efforts that have fallen away in the wake of a policy change in 2017 that was billed merely as a technical clarification to a century-old law protecting migratory birds. Across the country, birds have been killed and nests destroyed by oil spills, construction crews and chemical contamination, all with no response from the federal government, according to emails, memos and other documents viewed by the New York Times. Not only has the administration stopped investigating most bird deaths, the documents show, it has discouraged local governments and businesses from taking precautionary measures to protect birds.
In one instance, a Wyoming-based oil company wanted to clarify that it no longer had to report bird deaths to the Fish and Wildlife Service. “You are correct,” the agency replied.
In another, a building property manager in Michigan emailed the Fish and Wildlife Service to note that residents had complained about birds being killed while workers put up siding and gutters around the apartment. Not to worry, the agency replied: “If the purpose or intent of your activity is not to take birds/ nests/eggs, then it is no longer prohibited.”
And when a homeowners’ association in Arizona complained that a developer had refused to safely remove nesting burrowing owls from a nearby lot, Fish and Wildlife said that, because of the new legal interpretation, it could not compel the developer to act.
“Of course, we just got sued over that interpretation, so we’ll see how it ends up,” the enforcement officer wrote.
The revised policy — part of the administration’s broader effort to encourage business activity — has been a particular favorite of the president, whose selective view of avian welfare has ranged from complaining that wind energy “kills all the birds” to asserting that the oil industry has been subject to “totalitarian tactics” under the Migratory Bird Treaty Act of 1918. Habitat loss and pesticide exposure already have brought on widespread bird-species declines. The number of adult breeding birds in the United States and Canada has plummeted by 2.9 billion since 1970.
Now, said Noah Greenwald, the endangered species director for the Center for Biological Diversity, the Trump administration has engineered “a fundamental shift” in policy that “lets industrial companies, utilities and others completely off the hook.” Even a disaster like the Deepwater Horizon oil spill of 2010, which killed or injured about 1 million birds, would not expose a company to prosecution or fines.
Gavin Shire, a spokesman for the Fish and Wildlife Service, the agency responsible for protecting migratory birds, said in a statement that other federal laws like the Endangered Species Act remain on the books. The Trump administration, he said, “will continue to work cooperatively with our industry partners to minimize impacts on migratory birds.”
The documents tell a different story. In nearly two dozen incidents across 15 states, internal conversations among Fish and Wildlife Service officers indicate that, short of going out to shoot birds, activities in which birds die no longer merit action. In some cases the Trump administration has even discouraged local governments and businesses from taking relatively simple steps to protect birds, like reporting fatalities when they are found.
“You get the sense this policy is not only bad for birds, it’s also cruel,” Greenwald said.
The Migratory Bird Treaty Act was originally enacted to protect the birds from overhunting and poaching at a time when feathered hats were all the rage and the snowy egret was hunted almost to extinction. It makes it illegal “by any means or in any manner” to hunt, take, capture or kill birds, nests or eggs from listed species without a permit.
Beginning in the 1970s, federal officials used the act to prosecute and fine companies up to $15,000 per bird for accidental deaths on power lines, in oil pits, in wind turbines and by other industrial hazards.
Kathleen Sgamma, president of the Western Energy Alliance, an oil and gas trade association, said fossil fuel companies had been unfairly targeted by the law, pointing to an Obama administration prosecution of seven oil companies in North Dakota for the deaths of 28 birds.