Federal judge struck down legal rationale for changing how bird treaty was enforced
By Matthew Brown and John Flesher
Associated Press
BILLINGS, Mont. (AP) — The Biden administration on Monday reversed a policy imposed under former President Donald Trump that drastically weakened the government’s power to enforce a century-old law that protects most U.S. bird species.
Trump ended criminal prosecutions against companies responsible for bird deaths that could have been prevented.
The move halted enforcement practices under the Migratory Bird Treaty Act in place for decades — resulting most notably in a $100 million settlement by energy company BP after the 2010 Gulf of Mexico oil spill killed about 100,000 birds.
A federal judge in New York in August struck down the Trump administration’s legal rationale for changing how the bird treaty was enforced.
But the administration did not abandon its policy, rejecting concerns that many more birds would die and remaining adamant that the law had been wielded inappropriately to penalize accidental bird deaths.
Interior spokesman Tyler Cherry said the Trump policy “overturned decades of bipartisan and international consensus and allowed industry to kill birds with impunity.”
Cherry said in a statement that the agency plans to come up with new standards “that can protect migratory birds and provide certainty to industry.”
Details on the new standards were not immediately made public, but advocacy groups on behalf of the tens of millions of bird watchers in the U.S. said Monday that they want a permitting system to more closely regulate the hundreds of millions of birds that die annually in collisions with wind turbines, after landing in oil pits and from other industrial causes.
While industries have taken steps to deal bird deaths, such as putting nets over oil pits and marking transmission equipment to prevent collisions, some individual companies don’t deal adequately with the problem and there is no uniform approach.
“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,” said Sarah Greenberger, a senior vice president with the Audubon Society, a bird advocacy group. “There was a lot of common ground, which is why the moves from the last administration were so unnecessary.”
Industry groups including the American Petroleum Institute supported the Trump policy, but since President Joe Biden came into office they have expressed willingness to work with the Democrat. The petroleum trade group said Monday it will work “in support of policies that support environmental protection while providing regulatory certainty.”
The migratory bird policy was among dozens of Trump-era environmental actions Biden ordered reconsidered on his first day in office. Former federal officials, environmental groups and Democrats in Congress said many of the Trump rules were meant to benefit private industry at the expense of conservation.
More than 1,000 North American bird species are covered by the treaty — from fast-flying peregrine falcon to tiny songbirds and more than 20 owl species. Non-native species and some game birds, like wild turkeys, are not on the list.
Besides the BP case, hundreds of enforcement cases — targeting utilities, oil companies and wind energy developers — resulted in criminal fines and civil penalties totaling $5.8 million between 2010 and 2018.
U.S. Fish and Wildlife Service officials have said relatively few of the cases end in criminal prosecutions because most companies are willing to take measures to address hazards that their operations may pose to birds.
Industry and other human activities — from oil pits and wind turbines, to vehicle strikes and glass building collisions — kill an estimated 460 million to 1.4 billion birds annually, out of an overall 7.2 billion birds in North America, according to the U.S. Fish and Wildlife Service and recent studies. Researchers have said cats in the U.S. kill the most birds — more than 2 billion a year.
Virginia’s Democratic governor blamed the Trump administration decision to end enforcement of the migratory bird law for the 2019 destruction of a nesting ground for 25,000 shorebirds to make way for a road and tunnel.
The 1918 migratory bird treaty came after many U.S. bird populations had been decimated by hunting and poaching — much of it for feathers for women’s hats.
