POLITICS

Biden Administration Delays Trump Rule Slashing Migratory Bird Protections

The halted regulation would block energy companies and other parties from being prosecuted for unintentionally killing migratory birds.
A pelican coated in oil stands on the beach in Ship Island, Mississippi, in July 2010, weeks after the Deepwater Horizon oil
A pelican coated in oil stands on the beach in Ship Island, Mississippi, in July 2010, weeks after the Deepwater Horizon oil spill started in the Gulf of Mexico.

The Biden administration on Thursday delayed the implementation of a Trump-era rule that gutted protections for hundreds of species of migratory birds. 

Finalized in former President Donald Trump’s final days in office, the rule codified a 2017 legal interpretation of the Migratory Bird Treaty Act (MBTA) that effectively legalized the killing of migratory birds by corporations and individuals so long as the deaths were not intentional. 

Interior Department officials said Thursday that the rule, which was slated to take effect Feb. 8, will be reviewed and opened back up to a 20-day public comment period. 

“The Migratory Bird Treaty Act is a bedrock environmental law critical to protecting migratory birds and restoring declining bird populations,” Interior spokeswoman Melissa Schwartz said in a statement. “The Trump administration sought to overturn decades of bipartisan and international precedent in order to protect corporate polluters.”

The controversial legal opinion — the foundation of the final rule — was authored by Daniel Jojani, then the top lawyer at Interior and a longtime former adviser to the fossil fuel moguls Charles Koch and his late brother, David Koch. Jojani determined that the 100-year-old law only prohibits the intentional hunting, capturing or killing of bird species.

Federal wildlife officials treated that interpretation as the established policy for more than two years, and bird deaths caused by fossil fuel operations, oil and chemical spills, power lines and other industry infrastructure went largely uninvestigated. 

Along with breaking from decades of legal precedent, the change opened the door for gross negligence by industry and the public alike, as HuffPost previously reported

Snow geese land in a farm field at their winter grounds  in the Skagit Valley near Conway, Wash. More than 50,000 of the
Snow geese land in a farm field at their winter grounds  in the Skagit Valley near Conway, Wash. More than 50,000 of the birds flock annually to the valley, after migrating from the Arctic tundra. The birds are up to 33 inches tall with a wingspan of over four feet.

In August, a federal judge overturned that 2017 interpretation of the law, concluding that it “runs counter to the purpose of the MBTA to protect migratory bird populations.” In her ruling, Justice Valerie Caproni of the Southern District of New York quoted Harper Lee’s “To Kill a Mockingbird.”

“It is not only a sin to kill a mockingbird, it is also a crime,” she wrote. “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.”

Despite the court ruling and a number of legal challenges from states and environmental groups, the Trump administration pressed ahead with its interpretation. In its own environmental assessment of the final rule, the Fish and Wildlife Service, which administers and enforces the MBTA, acknowledged that the change would result in more bird deaths and fewer entities implementing best practices to avoid killing feathered species. 

Rep. Raúl M. Grijalva (D-Ariz.), the chairman of the House Natural Resources Committee, applauded the Biden administration’s pause Thursday.

“The Trump administration’s rules often weren’t worth the paper they’re printed on, and making it easier and cheaper for corporate polluters to kill birds was no exception,” he said in a statement. “The Biden administration has done an excellent job of refocusing public regulations on public input and public good rather than polluters’ checkbooks.”

The 1918 MBTA protects more than 1,000 migratory bird species, including sandpipers, cranes and geese. It is illegal to pursue, hunt, capture, kill or possess migratory birds or their parts without proper permits. And since the 1970s, the federal government has occasionally prosecuted timber, fossil fuel and mining companies under the law for unintentional but often avoidable bird deaths caused by industrial activity.

Following the 2010 Deepwater Horizon oil spill in the Gulf of Mexico, for example, energy company BP pleaded guilty to numerous criminal charges including violating the MBTA and agreed to pay $100 million in fines. The disaster killed an estimated 1 million birds.