Biden Reverses Trump-Era Gut of Migratory Bird Protections

The Trump administration had claimed the 1918 Migratory Bird Treaty Act barred the intentional hunting of birds, not unintentional deaths caused by industrial activities.

(CN) — The Biden administration voided a Trump-era legal opinion Monday regarding migratory birds and protections that have been in place for over a century. 

The Department of Interior reversed legal interpretation by its former top lawyer Daniel Jorjani in 2017 that parties could not be held responsible for the accidental deaths of birds, even in deaths related to a chemical spill, oil and gas operations, power lines or wind turbines. 

The Trump administration argued the Migratory Bird Treaty Act, passed in 1918, meant to cover the intentional hunting of migratory birds and was not intended to hold industry and private actors responsible for unintentional deaths. 

Critics of Jorjani’s legal interpretation said it failed to incorporate decades of legal precedent and would remove incentives for resource extraction industries to update their facilities to ward off accidental deaths. 

On Monday, Interior Department spokesman Tyler Cherry said Jorjani’s legal opinion “overturned decades of bipartisan and international consensus and allowed industry to kill birds with impunity.”

Cherry pointed to a New York federal judge’s ruling that said the legal justifications for Jorjani’s opinion were insufficient. The Trump administration, however, never abandoned the legal opinion and continued to insist the law as crafted in 1918 was not intended to apply to accidental bird deaths. 

Cherry said the agency will work on crafting its own interpretation of the century-old piece of legislation to replace the Trump-era opinion. 

“The department will also reconsider its interpretation of the MBTA to develop common-sense standards that can protect migratory birds and provide certainty to industry,” Cherry said. 

Industry lobbyists like the American Petroleum Institute (API) were initially supportive of the Trump-era bid to roll back protections for migratory birds, but did not take a confrontational approach to Monday’s news. 

“We are committed to working with the Biden administration throughout their rulemaking process in support of policies that support environmental protection while providing regulatory certainty,” said Amy Emmert, a senior policy adviser with API.

Bird advocates want to see a policy that requires industry to do more to prevent the hundreds of millions of bird deaths from industrial operations, whether in oil fields or wind turbines. 

“There really had been a lot of collaboration and a fair amount of consensus about what best management practices looked like for most major industries,” Sarah Greenberger, a senior vice president with the Audubon Society, told The Associated Press. “There was a lot of common ground, which is why the moves from the last administration were so unnecessary.”

One of the more notable enforcement actions under the Migratory Bird Treaty Act came in 2010, after the Gulf of Mexico oil spill killed about 100,000 birds. BP agreed to pay $100 million in a settlement. 

The law protects more than 1,000 bird species including falcons and songbirds. Game species like turkeys are not protected, nor are invasive species of birds like flamingos. 

Human activities, including industrial operations, kill approximately 1.4 billion birds annually, according to recent studies and the U.S. Fish and Wildlife Service. The common housecat remains the most voracious enemy to the North American bird, estimated to kill 2 billion birds a year. 

Studies estimate there are about 7.2 billion birds in the United States at any given time. 

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