WaPo article (link follows text) -
Climate and Environment
Biden officials finalize a rule making it harder to kill birds, reversing Trump
The move restores protections under the 1918 Migratory Bird Treaty Act, which
imposes penalties for unintentionally causing bird deaths through drilling,
construction and other activities
Listen to article4 minA greater white-fronted goose flies at Teshekpuk Lake in
North Slope Borough, Alaska on May 25, 2019. Migratory birds such as this one
will receive greater federal protection under a rule change the Biden
administration finalized Wednesday. (Bonnie Jo Mount/The Washington Post) By
Maxine JoselowSeptember 29, 2021 at 1:49 p.m. EDT
The Biden administration finalized a rule Wednesday revoking a Trump
administration policy that eased penalties for killing birds, restoring federal
protections that had been in place for a century.
The Trump administration’s reinterpretation of the 1918 Migratory Bird Treaty
Act ranked as one of its most contentious wildlife policies. It relaxed legal
penalties for energy companies, construction firms and land developers that
unintentionally killed birds through activities such as construction and oil
drilling.
The new U.S. Fish and Wildlife Service rule would restore protections under the
bedrock environmental law, which prohibits the “take” of migratory bird species
— regulatory-speak for hunting, killing, capturing, selling or otherwise
hurting them. Under President Donald Trump, officials had sought to exclude
accidental deaths from the “take” definition, a move backed by the oil and gas
industry.
Interior Secretary Deb Haaland said the new rule would protect more birds
threatened by the dual crises of climate change and habitat loss. She noted
that the Fish and Wildlife Service officially declared the ivory-billed
woodpecker extinct Wednesday, along with 22 other species that can no longer be
found in the wild.
“The specifics for each of the species' demise vary, but the story arc is
essentially the same: Humans altered their habitat in a significant way, and we
couldn't or didn't do enough to ultimately change the trajectory before it was
too late,” Haaland told reporters on a call Wednesday.
“But this moment, as sobering as it is, can serve as a wake-up call. Our
children and grandchildren will not know the Earth as we do unless we change
the status quo,” said Haaland, who is on a trip to California and visited the
San Diego National Wildlife Refuge on Tuesday.
The Biden administration will step up enforcement to ensure companies and
individuals take precautions to avoid bird deaths in the future, officials
said, and will develop a new policy after taking public comment.
Mallori Miller, vice president of government relations at the Independent
Petroleum Association of America, which represents small and midsize oil and
gas companies, said the group was “disappointed” with the Biden
administration’s move to reverse the Trump policy.
“Repealing this provision will not have the desired outcome of additional
conservation but will, in fact, financially harm businesses who have an
incidental take through no fault of their own,” Miller said in an email. “This
is not a case of punishing 'bad actors' but rather a situation where companies
are set up for failure.”
Oil and gas companies benefited the most from the Trump rule, according to an
analysis by the National Audubon Society, a conservation organization. The
industry’s operations accounted for 90 percent of cases prosecuted under the
law, with fines of $6,500 per violation. Two disastrous oil spills, Deepwater
Horizon in 2010 and Exxon Valdez in 1989, accounted for 97 percent of the
fines, the analysis found.
Erik Schneider, a policy manager at the National Audubon Society, called the
new rule an “important first step” to protect imperiled bird populations, which
have declined by roughly 3 billion since 1970.
“We need a significant expansion of efforts to bring birds back and protect
them for the future,” he said. “It’s also critically important that we
safeguard the Migratory Bird Treaty Act and improve the way that it’s
implemented.”
After formally publishing the new rule in the Federal Register on Monday,
officials said, the administration plans to solicit public comments and host
virtual meetings on ways to improve the act’s implementation.
The Trump administration first attempted to overhaul interpretation of the
Migratory Bird Treaty Act with a December 2017 solicitor’s opinion. But in
August 2020, a federal judge struck down the maneuver as illegal.
Referring to Harper Lee’s famous novel, U.S. District Judge Valerie E. Caproni
wrote: “It is not only a sin to kill a mockingbird, it is also a crime. … 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.”
The Trump administration followed up with a November analysis that found the
new interpretation would not cause unacceptable environmental harm. But
Haaland, the Interior secretary, announced plans to reverse the Trump policy in
May, saying the move would “ensure that our decisions are guided by the
best-available science.”
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Trump weakened an iconic law that protects birds. Biden just moved to re...
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Kathleen Sgamma, president of the Western Energy Alliance, which represents oil
and gas drillers in Western states, warned that the Biden administration's new
interpretation may not survive in court.
“The plain language of the MBTA is focused on direct hunting and killing, not
accidental take, as three circuit courts have recognized,” Sgamma said in an
email. “By ignoring all but one circuit court ruling in this rule and hanging
its hat on a district court ruling that hasn’t gone through appeal, the Biden
administration is not clearing up the legal issues addressed by various circuit
courts and will be legally vulnerable.”
Asked whether her group planned to challenge the new rule in court, Sgamma
said, “We will review the final rule before deciding next steps.”
Wind turbine blades can also lead to accidental bird deaths. The American Clean
Power Association, which represents the wind and solar industry, wrote in
comments to the Fish and Wildlife Service in March that its members would
continue to take steps to protect birds, regardless of the federal requirements.
Aaron Weiss, deputy director of the Center for Western Priorities, an advocacy
group, praised the new rule but urged the Interior Department to halt oil and
gas lease sales planned in the Gulf of Mexico next month.
“It’s wonderful to move quickly to enforce the Migratory Bird Treaty Act,”
Weiss said. “On the other hand, how many migratory birds are going to die from
the effects of pollution when they are about to auction off the rights to a
billion barrels of oil?”
https://www.washingtonpost.com/climate-environment/2021/09/29/migratory-bird-treaty-act-biden/
