Wipeout of US Bird Protections Brings Twin Lawsuits

MANHATTAN (CN) — With less than 24 hours remaining in the presidency of Donald Trump, New York led a coalition of a dozen states on Tuesday in a court challenge on behalf of migratory birds. 

The U.S. Fish and Wildlife Service finalized regulations earlier this month that will limit the scope of protections for over one thousand species of waterfowl, raptors and songbirds under the Migratory Bird Treaty Act. While it is still an offense to kill birds on purpose, the agency now would give landowners and industry operatives a pass if they create an oil spill or other environmental hazard that kills birds accidentally.  

For nearly 40 years, from the 1970s through Trump’s first year in office in 2017, the Department of Interior and U.S. Fish and Wildlife Service interpreted the act to prohibit killing or taking migratory birds regardless of whether doing so was deliberate or incidental. 

But Trump administration officials claimed the rollback hews to the original intent of the law and will be a boon for landowners and industry operatives that have been wrongly held accountable for the accidental deaths of migratory birds.  

“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 outgoing Interior Secretary David Bernhardt in a statement. 

Conservationists have meanwhile contended the last-minute change is a blatant giveaway to the oil and gas industry at the expense of a suite of endangered species, with knock-on effects for all bird species in North America and the environment as a whole. 

Seeking to have the outgoing administration’s last-minute final rule rolling back those bird protections declared unlawful and vacated, New York lodged its 37-page complaint in the state’s Southern District one day before the swearing in of President-elect Joe Biden.

The other states involved in this case are California, Connecticut, Illinois, Maryland, Minnesota, New Jersey, New Mexico, Oregon, and Washington, Massachusetts and Pennsylvania. 

They say the law’s original threat of prosecution for incidental harm to birds gave businesses an incentivize to mitigate foreseeable hazards such as oil spills, poison and electrocution on power lines, saving the lives of millions of migratory birds.

Separately in that same court, a coalition of seven national environmental groups led by National Audubon Society and Natural Resources Defense Council made a similar pitch. 

Bonnie Rice, endangered species representative for co-plaintiff Sierra Club, called the administration’s rollback of protections for migratory birds “an appalling and inexcusable give-away to corporate polluters who don’t want to face any consequences for killing birds.” 

“Two-thirds of North America’s birds are imperiled by climate change,” Rice wrote in a statement Tuesday. “More than 3 billion birds have vanished since 1970. We need more protections, not less, in the face of this massive loss and the current human-caused extinction crisis.”

The Sierra Club joined the complaint along with co-plaintiffs the American Bird Conservancy, Center for Biological Diversity, Defenders of Wildlife and the National Wildlife Federation. 

The NRDC previously sued the Trump administration in 2018 over reinterpretations to the Migratory Bird Treaty Act proposed three years ago in a December 2017 agency memorandum by Daniel Jorjani, the Trump-appointed solicitor of U.S. Interior Department. 

A former Koch Industries employee, Jorjani wrote an agency decision permitting “incidental” killings, an allowance that quickly disarmed punishment for bird deaths and devastated certain nesting areas. 

U.S. District Judge Valerie Caproni overturned Jorjani memo in a scathing ruling last August that quoted the wisdom of literary lawyer Atticus Finch. 

“It is not only a sin to kill a mockingbird, it is also a crime,” the Alabama-born judge wrote in the introduction of her 31-page ruling.   

A representative for the Department of Interior did not respond to a request for comment Tuesday afternoon. At U.S. Fish and Wildlife, a spokesperson declined to comment on the pending litigation.

Industry operations kill an estimated 450 million to 1.1 billion birds annually, out of roughly 7 billion birds in North America, according to the U.S. Fish and Wildlife Service and recent studies. 

In his regular broadsides against renewable energy, Trump routinely claimed that wind turbines cause cancer and are a “bird graveyard.”  

There is no evidence linking windmills to cancer, and coal power — which Trump champions — kills millions more birds than the some 140,000 and 500,000 that collide with wind turbines annually. 

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