The Trump administration is working to cement new standards weakening enforcement of the century-old Migratory Bird Treaty Act.
Interior Department officials said Thursday that they will propose regulations clarifying that individuals and industrial operators, such as oil, gas and wind companies, will not be penalized if they accidentally kill birds — even on a massive scale.
Speaking to reporters Thursday, U.S. Fish and Wildlife Service Director Aurelia Skipwith said the new regulatory language is needed so that “industry can operate without the fear that unintentional acts will be prosecuted” when birds are killed. Officials said that rather than force industries to protect birds, they will rely on them to do so voluntarily. The proposed regulations are expected to be published Monday, followed by a 45-day period for public comment and then final language.
After noting that agency officials are “fully committed” to migratory bird conservation, Skipwith added, “We are also committed to President [Donald] Trump and Interior Secretary David Bernhardt’s goal of reducing the regulatory burden, and delivering good government services.”
Since guidelines under the administration’s interpretation of the law were issued in April 2018, hundreds of ducks, geese, herons and migrating birds have perished in oil pits, on utility lines and other operations without penalty, according to documents compiled by conservation groups.
Birds including hawks, owls and songbirds are drawn to oil skim pits that resemble ponds from the air. They often swoop in to prey on bats, reptiles, insects and small game that are also attracted and fall into the pits, and struggle in the sticky oil. Oil pits alone are estimated to kill between 500,000 and 1 million birds each year, according to a 2010 report by the environmental management division of Fish and Wildlife.
In the wake of the administration’s more lax enforcement of environmental protections, two major reports flagged the perils facing wildlife. In May last year, a United Nations report found that a million plant and animals species are on the verge of extinction as a result of human activity. Four months later, a report by top ornithologists and government agencies found that nearly 3 billion birds across hundreds of species have been lost in North America. Both reports referred to their findings as a biodiversity crisis.
At least seven attorneys general and several conservation organizations challenged the administration’s opinion on the Migratory Bird Treaty Act in federal court. A judge rejected a motion by Interior to dismiss the case.
There is no existing data to estimate the number of birds saved before the administration watered down the laws, but Sarah Greenberger, a senior vice president for conservation at the National Audubon Society, noted that Fish and Wildlife downgraded the number of bird deaths subject to penalties from 2 million birds a year to a few thousand.
The Fish and Wildlife Service has curtailed its enforcement of the law in the wake of the Dec. 22, 2017 legal opinion, according to documents released under the Freedom of Information Act by the Center for Biological Diversity. Agency officials have declined to pursue cases against companies whose actions have had lethal consequences for birds across the country.
Just over a month after the legal opinion was published, for example, a U.S. Coast Guard official notified employees from Interior, Fish and Wildlife and the National Oceanic and Atmospheric Administration on Jan. 31, 2018 that the Coast Guard had identified the tugboat whose oil spill in Great Harbor, Massachusetts killed more than two dozen birds.
After one Fish and Wildlife Service employee asked “is it time to get on a conference call” with Interior Department lawyers, the agency’s resident agent in charge for New England made it clear that would not be necessary.
The agency’s police follow a new legal opinion, the agent wrote. “As this spill involves the incidental take of birds protected by the Migratory Bird Treaty Act, there is currently no enforcement action planned by OLE.”
Before Interior’s recent change, industries recognized that they had an obligation to take basic steps to protect birds as part of the global treaty. “Now the Fish and Wildlife Service is saying you don’t have to do that anymore. You can imagine the ripple effect across this country that abandon those practices and the longstanding impact that will have,” Greenberger said. “Historically the Migratory Bird Treaty Act has been one of the government’s most powerful and most effective tools … that the justice department would bring in the wake of significant acts.”
Under the Trump administration’s proposed regulations, companies at the center of disasters similar to the 1989 Exxon Valdez oil spill in Alaska that killed an estimated 250,000 birds and the 2010 Deepwater Horizon debacle that is estimated to have killed more than a million birds, would not be penalized. After an oil spill, Interior would pursue penalties under the Natural Resources Damage Assessment program that is not specific to birds.
“They have told people for two years that they expected to put out this interpretation and cement it into the law,” said Bob Dreher, a vice president for conservation at Defenders of Wildlife. Other federal agencies such as the Department of Agriculture made it clear that they would not alter their approach to protecting birds without a regulation. “It may not sound like big news … but it will have real effects on how agencies and companies will respond to this policy now.
“We will fight this new regulation on the same basis we will fight the solicitor’s opinion.”