Trump, in parting gift to Big Oil, reverses bird protection

WASHINGTON — The Trump administration gutted protections for migratory birds Tuesday, delivering the second of two parting gifts 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 move, by the Department of the Interior, came a day after the Environmental Protection Agency finalized another regulation that had long been sought by fossil fuel companies and other major polluting industries: a measure that effectively bars some scientific studies from consideration when the agency is drafting public health rules.

The two regulations are among the last major environmental rollbacks expected fromthe Trump administration and will present an immediate challenge to the incoming Biden administration, which has pledged to suspend and reverse many of the last-minute rules known as midnight regulations.

“These are definitely midnight regulations,” said Richard Revesz, an environmental law professor at New York University. “They’re 11:59 and 59 seconds regulations.”

A senior official with the Biden transition team, speaking on background Tuesday in a briefing call with reporters, called the last-minute rollbacks an “unrelenting assault” on the environment and said rebuilding federal agencies that the Trump administration has gutted will be an enormous task.

“Oneway or another the most pernicious of these rules will end up getting undone,” Revesz said.

In the case of the bird rule, conservationists and oil industry executives alike have said that was precisely what the Trump administration intended. The industry has long sought to be shielded from liability for killing birds unintentionally in oil spills, toxic waste ponds and other environmental disasters.

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.

Accidentally killing birds is rarely prosecuted under the law, 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 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.

David Bernhardt, the interior secretary, described the new policy as a simple clarification of the law.

“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,” Bernhardt said in a statement.