Interior Department to nix Trump rollback of bird protections

The Biden administration is officially revoking a Trump-era rule that made companies less likely to face penalties for killing migratory birds.

The White House on Wednesday withdrew the changes the Trump administration made to how the Migratory Bird Treaty Act (MBTA) — a more than 100-year-old law that makes it illegal to kill migratory birds — is implemented.

The Trump administration’s rule removed penalties for “accidental” or “incidental” bird deaths, arguing that it wouldn’t be fair to levy penalties in those situations. But it acknowledged even then that the rule could cause companies to forego best practices to limit incidental bird deaths.

Harm is considered incidental when it is not intentional, but also not unexpected, according to the National Oceanic and Atmospheric Administration.

The Interior Department said it will make public a final rule nixing the Trump-era regulation on Thursday, with publication in the Federal Register slated for Monday.

By revoking the rule, the department will return to interpreting the law as prohibiting incidental harm and being able to use its direction in enforcement. The agency also said it will seek comments on a potential rule on incidental harm of migratory birds.

It will also issue an order establishing criteria for prioritizing enforcement.

The MBTA has been used to impose financial penalties on companies for environmental destruction, including the 2010 Deepwater Horizon oil spill. 

After that spill, BP pleaded guilty to violating the MBTA, in addition to other charges, and had to pay $100 million to support wetlands conservation and restoration.

But, in pushing to remove penalties for incidental harm, the Trump administration had argued against such fees. 

“Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions,” then-Interior Solicitor Daniel Jorjani wrote in 2017.

Opponents of the Trump-era rule argued that under those revisions, BP would not have faced financial consequences for the bird deaths caused by the spill.

Sen. Chris Van Hollen (D-Md.) invoked the BP oil spill while cheering the reversal.

“Elections matter. The #MBTA holds Big Oil accountable when they destroy wildlife — like the 100,000+ birds killed by the Deepwater oil spill. That was, until Trump tried to gut it,” the Maryland Democrat tweeted on Wednesday. 

“I fought back on this for yrs & am glad to see @POTUS reverse course to hold these companies liable,” he added.

Rep. Raúl Grijalva (D-Ariz.), who chairs the House Natural Resources Committee, said in a statement that he’s “ready to assist the [Interior] Department as it gathers public input and develops a new framework.”

“Thanks to the work of Secretary [Deb] Haaland, the Biden administration is taking the next steps in its promise to protect birds and address unjust Trump policies that put polluters over people and the environment,” he said.

Grijalva’s Republican counterpart, Rep. Bruce Westerman (Ark.), called it “ridiculous” that someone who unintentionally harms a migratory bird could face penalties.

“All the Trump administration’s MBTA rule did was clarify the federal requirements to protect anyone who accidentally harmed or killed a migrating bird and shift the focus of prosecution to those that intentionally injure or kill migrating birds,” he said in a statement to The Hill.

“Somehow even those who inadvertently injure a migratory bird…must be subject to the full weight of the law. It’s a ridiculous notion and yet this administration is bent on making the federal government as heavy-handed as possible,” he added. 

On Wednesday, Biden administration officials described the efforts for both the future rule and impending order on enforcement as measures that will promote conservation and create regulatory certainty.

Jerome Ford, the Fish and Wildlife Service’s (FWS) assistant director for migratory birds, told reporters that the agency is considering codifying the interpretation that the MBTA prohibits incidental harm.

It’s also considering creating a regulatory system that involves permitting for activities that lead to bird deaths and implementing practices to reduce those deaths.

Erik Schneider, a policy analyst at the National Audubon Society, which advocates for bird conservation, said he’d support this type of permitting system under which companies could be allowed to kill some birds. 

“The important thing is that it could help incentivize the development and the adoption of best management practices,” Schneider said. 

Shannon Estenoz, the assistant Interior secretary for Fish and Wildlife and Parks, said the order from FWS will say that it interprets the law to prohibit the incidental harm of migratory birds and will enforce the law with this in mind until new regulations are issued. 

Estenoz said the agency would be selective in where it focuses its efforts.

“Pursuing enforcement for all such activities would be neither an effective nor judicious use of our law enforcement resources,” she told reporters. “The Service will focus its enforcement efforts on activities that are otherwise illegal and/or where the take of migratory birds was foreseeable but where known beneficial practices that might have avoided or minimized that take were not implemented.”

As of 2017, industry was responsible for killing between 453,000 and 1.14 million birds annually, according to the FWS.

Speaking in support for the new decision, Interior Secretary Deb Haaland invoked recent news that the department recently declared 22 animal species — including certain birds — and one plant extinct.

“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. We’ve got to do better by the planet and we need to do it now,” she said.

Updated at 6 p.m.