WASHINGTON – In a last-gasp effort before departing the White House, the Trump administration took another swipe at weakening enforcement of a 100-year-old law that protects migrating birds.
With two weeks left in office, the administration published a rule Tuesday that spares industries and individuals from prosecution or penalties under the Migratory Bird Treaty Act if their actions, such as not covering tar pits, results in bird deaths. If the deaths were unintentional, the U.S. Fish and Wildlife Service says in the rule, there will be no enforcement.
Conservation groups immediately vowed to sue to stop the rule from going into effect a month from now. They also called on the Biden administration to overturn it.
The groups say a legal challenge will prevail because of an earlier court decision that rejected the opinion on which the new rule is based.
U.S. District Judge Valerie Caproni issued a blistering opinion that quoted Harper Lee’s famous novel after deciding in favor of state attorneys general and conservationists who sued the administration.
“It is not only a sin to kill a mockingbird, it is also a crime,” Caproni wrote in August. “That has been the letter of the law for the past century. But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”
On its face, the opinion that supported the administration’s rationale for changing the rule, Caproni decided, “is contrary to the plain meaning of the MBTA and therefore must be vacated.”
But the Interior Department, which oversees Fish and Wildlife, continued its rulemaking process despite the decision.
In an analysis issued months after Caproni’s ruling, the department said it would not cause unacceptable environmental harm.
“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,” said Interior Secretary David Bernhardt.
The administration’s decision to relax enforcement, mostly on behalf of the oil and gas industry, against killing scores of birds followed two major reports that said human activity has triggered the sixth great extinction of wildlife, including the loss of billions of birds in North America.
In May 2019, a United Nations panel determined that 1 million species face extinction – “more than any other period in human history.”
Four months later, top ornithologists in government and academia reported that 3 billion birds have vanished in North America over the past 50 years.
“The historic environmental protections under the Migratory Bird Treaty Act have been upheld for nearly a century,” Sen. Chris Van Hollen, D-Md., said in a statement. “The Trump administration’s new rule renders these safeguards absolutely toothless, and means corporations would no longer be subject to penalties under this landmark environmental law for disasters like the Deepwater Horizon oil spill.”
Van Hollen said the rule “is a gift to Big Oil and other large corporations, including some of Secretary Bernhardt’s former lobbying clients.”
The Center for Biological Diversity is one of the groups that vowed to sue. “We’re certainly going to challenge this and are confident we will overturn this,” said Noah Greenwald, endangered species director at the center.
The center is part of a coalition of groups that prevailed in the earlier lawsuit, including the Natural Resources Defense Council, the Audubon Society and Defenders of Wildlife.
“The court found that their interpretation is inconsistent with the law, and they just plowed forward anyway,” Greenwald said. “It was a paper exercise to try and hold on to something they were already doing. If the courts don’t overturn it, the Biden administration probably will.”
Biden selected Rep. Deb Haaland, D-N.M., to replace Bernhardt at the Interior Department. Haaland, an environmental justice advocate, has frequently criticized President Donald Trump’s environmental policies.
“Americans want birds and nature taken care of – not swept aside to serve commercial interests. We urge the incoming administration to right this wrong as rapidly as possible,” said Steve Holmer of American Bird Conservancy.
Jim Murphy, director of legal advocacy at the National Wildlife Federation, pointed out that iconic species such as the snowy egret, wood duck and sandhill crane are disappearing while the administration is easing rules to protect them.
“This decision completely fails to comply with the Migratory Bird Treaty Act and will likely result in countless avoidable bird deaths,” Murphy said in a statement. “We are calling on the Biden administration and Congress to right this historic wrong by reinstating the act’s protections and taking up the Migratory Bird Protection Act in the 117th Congress.”