Biden Poised to Revive Wild Bird Protections Slashed by Trump

The rule, previously set to take effect Feb. 8, was approved in the final days of the Trump administration and would drastically reduce protections for wild birds.

In this March 29, 2020, file photo, a bird flies among wind turbines near King City, Mo. (AP Photo/Charlie Riedel)

(CN) — The Biden administration appears set to roll back another of President Donald Trump’s environmental policies, announcing Thursday it will delay a federal rule that severely hampers the government’s authority to enforce protections for migratory birds. 

In the last days of the Trump administration, the U.S. Fish and Wildlife Service (FWS) finalized a rule limiting the scope of the Migratory Bird Treaty Act (MBTA), one of the oldest wildlife conservation laws that protects migrating birds, their nests and their eggs from illegal capture and trading. 

The law, which covers most bird species found in the United States, protects birds from “incidental takes,” or deaths that resulted from them falling into oil pits or flying into power lines and communications towers.

But the Trump administration excluded incidental takes in its MBTA rule finalized on Jan. 7 and narrowed its scope to apply to situations where landowners and industry operatives kill birds on purpose, not incidentally.

At the time, outgoing Interior Secretary David Bernhardt said in a statement the rule aligned with the law’s original intent, which he claimed would protect landowners and industry operatives from wrongful criminal prosecutions for the incidental deaths of migratory birds. 

Industry infrastructure such as wind turbines, power lines and building glass contribute to the deaths of up to 1.2 billion birds annually, according to FWS studies.

The MBTA had pushed companies to deploy infrastructure technology and best practices that would safeguard migratory birds. Now any incentives to do right by the birds would be nonexistent, conservationists said in response to the rule.

Conservation groups called Trump’s action a last-minute gift to the oil and energy industries and legal experts speculated whether the new rule would survive challenges in federal court or executive action by the incoming Biden administration. 

The move Thursday by the Biden administration stalls the rule and reopens the federal rulemaking process, which includes collecting public comment on the proposed change.

In statement to Courthouse News, Noah Greenwald, endangered species director at the Center for Biological Diversity, said conservationists are hopeful the rule will eventually be struck down entirely.

“We’re glad President Biden is delaying this disastrous rule that would allow more birds to be killed at a time when their populations are already plummeting,” Greenwald said. “Our hope is that the administration rescinds the rule and replaces it with a new program for the conservation of migratory birds.”

The center joined other conservation organizations in a federal lawsuit filed Jan. 19 seeking to have the Trump administration final rule declared unlawful and vacated.

An Interior Department spokesperson did not immediately respond to an emailed request for comment on Biden’s action Thursday.

Last August, U.S. District Judge Valerie Caproni rejected the Trump administration’s reinterpretation of the MBTA and vacated an opinion on the matter issued by the Interior Department’s Solicitor.

“There is nothing in the text of the MBTA that suggests that in order to fall within its prohibition, activity must be directed specifically at birds,” Caproni’s ruling said. “Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only ‘some’ kills are prohibited.”

The Trump administration appealed the ruling.

The Audubon Society estimates bird populations in the United States have diminished by 3 billion since 1970.

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