MANHATTAN (CN) – Just three months after the Trump administration defeathered a 100-year-old bird law, a pipeline operator won permission to clear trees in nesting season. Conservationists brought a federal complaint Thursday to restore the status quo.
Filed in New York, the complaint today from the Natural Resources Defense Council accuses Daniel Jorjani, solicitor of U.S. Interior Department, of throwing 40 years of science out the window with his December 2017 reinterpretation of the Migratory Bird Treaty Act.
Whereas decades of Jorjani’s predecessors had interpreted the law as outlawing activities intentional or incidental that harm or kill protected bird species, Jorjani’s new interpretation covers only intentional activities such as hunting or poaching.
“This new interpretation strips the agencies of any authority to regulate or enforce the act against companies that foreseeably — as well as knowingly and needlessly — kill migratory birds,” the 26-page complaint Thursday.
Represented by in-house counsel Mitchell Bernard, the NRDC notes that the threat to fowl, raptors and songbirds from industrial actors cannot be discounted.
Oil and gas development, communication towers, power lines, and commercial fishing are just some activities and infrastructure that can foreseeably kill migratory birds.
The NRDC also notes that compliance — “covering oil waste pits with netting, rigging flashing lights on towers” — is cheap and reasonable. But when companies shirk their responsibilities, as happened with the Exon Valdez and Deepwater Horizon oil spills, large numbers of migratory birds perished.
Before his appointment a year ago to the Interior Department, Jorjani had been director at the Charles Koch Foundation and the Charles Koch Institute.
His December legal opinion blamed commercial hunting for a number of bird extinctions but said that MBTA’s threat of prosecution has inhibited otherwise lawful conduct.
“Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed,” Jorjani’s 41-page opinion states.
The NRDC shot back Thursday meanwhile that Jorjani’s interpretation contravenes both the purpose and the statutory history of the law.
“It allows companies to knowingly and recklessly kill birds, undermining reasonable efforts to prevent unnecessary deaths,” the complaint states. “And it eliminates the act’s application in egregious cases of mass slaughter of migratory birds, such as large-scale oil spills.”
The NRDC points out that ramifications of the new scheme are occurring already. Before Jorjani’s reinterpretation, the natural gas company DTE Midstream Appalachia faced a limited window of September through March to clear trees for its Birdsboro Pipeline project in Pennsylvania.
With the Jorjani opinion in hand, however, the U.S. Fish and Wildlife Service gave DTE the green light in March to continue clearing activities through August.
The NRDC says this timeline “would likely affect actively nesting birds.”
While the complaint identifies only the National Wildlife Federation as a co-plaintiff, the Center for Biological Diversity noted in a press release that it also supports the NRDC’s lawsuit as do the National Audubon Society, Defenders of Wildlife and the American Bird Conservancy.
Noah Greenwald, endangered species director at the Center for Biological Diversity, called the rollback an “absolute disaster” for wildlife. “This rule will allow the death of even more birds, whether they’re landing on polluted ponds left uncovered by the oil and gas industry or have their nest trees cut down from underneath them,” Greenwald said in a statement. “It’s tragic.”
Sarah Greenberger, senior vice president of conservation policy for the National Audubon Society, meanwhile touted the MBTA as one of the country’s first conservation laws.
“It defies all facts for the Department of the Interior to suggest that this law is somehow broken when we have a century of evidence that says otherwise,” she said in a statement.
During an August 2016 campaign rally, then-candidate Trump knocked the pursuit of wind power as a renewable energy source because “the wind kills all your birds.”
“All your birds, killed,” he told supporters at a rally in Pennsylvania. “You know, the environmentalists never talk about that.”
The American Wind Energy Association quickly rebuked Trump’s campaign claims, commenting that cats, power lines and building windows kill more birds than wind power turbines. https://twitter.com/AWEA/status/760460384293810176
Some critics have suggested that the windows Trump built in his numerous real estate properties may have caused more bird deaths than wind energy apparatus has caused.
Representatives from the Department of the Interior and Fish and Wild Services did not immediately respond to requests for comment Thursday afternoon.