Trump gifts oil industry with bird protection reversal

WASHINGTON — The Trump administration gutted protections for migratory birds Tuesday, delivering a parting gift to the oil and gas industry, which has long sought to be shielded from liability for killing birds unintentionally in oil spills, toxic waste ponds and other environmental disasters.

The final rule comes less than a month before President-elect Joe Biden takes office.

While Biden has not explicitly pledged to repeal the measure, his choice for interior secretary, Rep. Deb Haaland of New Mexico, is widely expected to do so.

“This rule simply reaffirms the original meaning and intent of the Migratory Bird Treaty Act by making it clear that the U.S. Fish and Wildlife Service will not prosecute landowners, industry and other individuals for accidentally killing a migratory bird,” David Bernhardt, the Interior secretary, said in a statement.

Under the measure, which changes the way the 1918 Migratory Bird Treaty Act is implemented, the federal government will no longer fine or prosecute companies whose actions cause the death of birds, as long as killing birds was not the underlying intent of the action.

That holds true for accidents like oil spills and electrocutions on power lines as long as birds are not the intended target of the poison.

Accidentally killing birds is rarely prosecuted, but there have been notable exceptions, like when the Obama administration prosecuted seven oil companies in North Dakota for the deaths of 28 birds.

The Migratory Bird Treaty Act was also part of the basis for a $100 million settlement with BP for the deaths of more than 1 million birds in the 2010 Deepwater Horizon spill. And, in 2009, Exxon Mobil paid $600,000 after pleading guilty in the deaths of protected owls, raptors and waterfowl that died in uncovered natural gas pits, oil tanks and wastewater facilities.

Activists said that just the possibility of penalties has helped push industry to take precautions to prevent bird deaths.

Eric Glitzenstein, director of litigation at the Center for Biological Diversity, an environmental group, said his group and others were planning to challenge the rule in court even as they push the incoming Biden administration to reverse course.