Trump administration slashes protections for migratory birds

The new rule would legalize the unintentional killing of birds by energy companies and other industries.

 

Sandhill cranes migrate long distances across the Western United States and beyond.

The Trump administration on Thursday unveiled plans to permanently slash protections for hundreds of species of migratory birds ― a rollback that will primarily benefit the fossil fuel industry, power companies and major developers.

The proposed rule from the U.S. Fish and Wildlife Service seeks to codify a December 2017 legal opinion by Daniel Jorjani, the Interior Department’s top lawyer and a former adviser of fossil fuel moguls Charles and David Koch.

Federal wildlife officials have already been treating that guidance as the established rule, essentially legalizing all unintentional migratory bird deaths, including those caused by oil rigs, power lines and wind turbines. The change meant that the 100-year-old Migratory Bird Treaty Act solely prohibits the intentional hunting, capturing or killing of bird species.

In other words, if an activity or operation ― drilling for oil, constructing a building, cutting down trees or spraying chemicals ― is not intended to kill birds, then any resulting bird deaths are not a violation of federal law. Federal investigations into bird deaths have already come to a halt, and agencies have even discouraged companies from taking precautionary measures and reporting animal deaths to officials, a recent New York Times investigation found.

In a call with reporters Thursday, U.S. Fish and Wildlife Service Director Aurelia Skipwith said “migratory bird conservation is an integral part” of the agency’s mission, but stressed that regulations have left the agency “in a legal quagmire that doesn’t benefit our conservation objectives.”

The proposal, she said, “ensures hunting remains a benefit rather than a detriment to bird populations” and that “private industry, which are critical to our nation’s economy and overall well-being, can operate without the fear and uncertainty that the unintentional consequences of their actions will be prosecuted.”

Agency officials took no on-record questions from the media during the call. The proposed regulations are expected to be published early next week, which will kick off a 45-day public comment period.

Industry groups were quick to celebrate the Trump administration’s interpretation of the law back in 2017 and are certain to embrace Thursday’s action. Erik Milito of the American Petroleum Institute, the main trade association for the oil and natural gas industry, previously called the administration’s approach “an example of astute governance that provides certainty for responsible owners and operators of oil and natural gas facilities.”

The administration is already being sued over its controversial policy. The National Audubon Society and other wildlife organizations have argued the administration’s effort is an arbitrary handout to polluting industries, undermines decadeslong protections for migratory birds and opens the door for industry negligence. Attorneys general from eight states, including New York and California, have filed separate litigation. And 17 former Interior Department officials wrote to the Trump administration in January 2018 to oppose the rollback, calling it “a new, contrived legal standard that creates a huge loophole in the MBTA, allowing companies to engage in activities that routinely kill migratory birds.”

The new regulation is expected to draw additional lawsuits.

“This rule violates the trust and will of millions of Americans who love birds and want them around for future generations to enjoy.”

“With a recent study finding there are 3 billion fewer birds in North America than 50 years ago, you’d think we’d want more protection for birds, not less,” Noah Greenwald, endangered species director at the Center for Biological Diversity, said in a statement. “This rule violates the trust and will of millions of Americans who love birds and want them around for future generations to enjoy.”

The 1918 law protects more than 1,000 species of migratory birds, including eagles, cranes, terns, sandpipers and geese. It prohibits pursuing, hunting, capturing, killing or possessing birds or their parts without proper permits, with misdemeanor violations of the law resulting in as many as six months in prison and fines of up to $15,000.

For decades companies have been prosecuted under the law for unintentional bird deaths, one of the most notable examples being the $100 million in fines that BP agreed to pay over damage from the 2010 Deepwater Horizon oil spill. The disaster killed an estimated 800,000 birds.

Amid global climate change and extinction crises, the Trump administration has led an aggressive push for so-called “energy dominance.” It has weakened or scrapped a slew of environmental regulations in an effort to boost domestic fossil fuel production. And Trump has repeatedly railed against wind energy and overstated its negative impacts, claiming among other things that wind turbines “destroy” bird populations.

“You want to see a bird graveyard? ... Go under a windmill someday,” he said at a summit in Florida last month. “You’ll see more birds than you’ve ever seen in your life.”

An American coot on an oil-covered evaporation pond at a commercial oilfield wastewater disposal facility. Up to 2 million birds die each year after landing on fluid-filled waste pits at oil production operations.

While it is true that windmills are problematic for bird species, killing an estimated 140,000 to 328,000 birds in the U.S. each year, that pales in comparison to other human activity. Domestic and feral cats kill between 1.3 billion and 4 billion birds each year. Power lines result in anywhere from hundreds of thousands to 175 million bird deaths annually, while communication towers kill between 4 million and 50 million, according to a 2005 study by the U.S. Forest Service. And up to 2 million birds die each year after landing on fluid-filled waste pits at oil production operations, a 2006 Fish and Wildlife Service study found.

In the final days of the Obama administration, former Interior solicitor Hilary Tompkins issued a legal opinion concluding that the law applied to incidental wounding, killing or trapping of birds. Jorjani’s guidance reversed that interpretation.

“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 wrote in the 2017 legal opinion.

Unlike a legal opinion, the proposed regulation that Trump’s Interior Department rolled out Thursday would be much harder for a future administration to reverse.

During a congressional hearing in May, Jorjani was questioned about whether his years working for the Koch brothers influenced his decision to weaken the Migratory Bird Treaty Act.

“What industry most benefits from your [legal] opinion?” Sen. Mazie Hirono (D-Hawaii) asked.

“I’m not aware of any particular industry that benefits from this,” Jorjani replied. “I’d like to think the American people benefit from a...”

“I’d like to think so, too,” Hirono shot back. “But you cannot escape the conclusion that the people you used to work for before, the Koch brothers, that this one was one of their biggest issues that they wanted to have done away with ― prosecutions under the migratory species treaty.”

Chris D'Angelo is a reporter for HuffPost, based in Washington, D.C. Email High Country News at [email protected] or submit a letter to the editor.

High Country News Classifieds
  • ADOBE HOME
    Passive solar adobe home in high desert of central New Mexico. Located on a 10,000 acre cattle ranch.
  • EXECUTIVE DIRECTOR
    Western Slope Conservation Center Paonia, CO WSCC seeks a dynamic leader who is mission-driven, hardworking and a creative problem-solver. Position Summary: The Executive Director leads...
  • ARIZONA STATE DIRECTOR
    A LITTLE ABOUT US Founded in 1951, the Nature Conservancy is a global conservation organization dedicated to conserving the lands and waters on which all...
  • CONSERVATION MANAGEMENT/HOSPITALITY SERVICES
    Seasoned ranch manager of award-winning conservation ranch seeking position as nature reserve/resort or ranch manager. Visit philipmoonwalker.com for resume and certifications. Contact: [email protected]
  • PART-TIME OREGON GRANT WRITER
    Help advance rights for people, communities, and nature - Part-time grant writer. The Oregon Community Rights Network (ORCRN) has been active over the last six...
  • UTAH PUBLIC LANDS PROGRAM DIRECTOR
    Job Title: Utah Public Lands Program Director Location: Southern Utah Position: Full Time (40 hours per week) Supervisor: Conservation Director About us: The Grand Canyon...
  • FSBO PROPERTY-SOUTHEAST ARIZONA
    Located in an area steeped in history, this gentleman's ranch sits at the entrance to the renowned Cave Creek Canyon. Enjoy picturesque views of the...
  • EXECUTIVE DIRECTOR
    Eastern Nevada Landscape Coalition, based in Ely, Nevada is looking for a new executive director to replace the long-time executive director who is retiring at...
  • LAND CONSERVATION PROJECT MANAGER
    JOIN OUR TEAM! The New Mexico Land Conservancy in Santa Fe is seeking a Land Conservation Project Manager who will work to protect land and...
  • HOME NEAR CAPITOL REEF NP
    Comfortable home at foot of Boulder Mountain, on one fenced acre. Amazing views!
  • STEVE HARRIS, EXPERIENCED PUBLIC LANDS/ENVIRONMENTAL ATTORNEY
    Comment Letters - Admin Appeals - Federal & State Litigation - FOIA -
  • LISA MACKEY PHOTOGRAPHY
    Fine Art Gicle Printing. Photo papers, fine art papers, canvas. Widths up to 44". Art printing by an artist.
  • LOG HOME IN THE GILA WILDERNESS
    Beautiful hand built log home in the heart of the Gila Wilderness on five acres. Please email for PDF of pictures and a full description.
  • NEW MEXICO PROPERTY - SILVER CITY
    20 acres, $80,000. Owner financing, well, driveway, fencing possible, very private, sensible covenants, broker owned. Contact - 575-534-7955 or [email protected]
  • SECLUDED COLORADO HIDEAWAY
    This passive solar home sits on 2 lots and offers an abundance of privacy and views while being only 15 minutes to downtown Buena Vista....
  • CARETAKER
    2.0 acre homestead needing year-round caretaker in NE Oregon. Contact [email protected] for details.
  • SEEKING PROPERTY FOR BISON HERD
    Seeking additional properties for a herd of 1,000 AUM minimum. Interested in partnering with landowners looking to engage in commercial and/or conservation bison ranching. Location...
  • COPPER STAIN: ASARCO'S LEGACY IN EL PASO
    Tales from scores of ex-employees unearth the human costs of an economy that runs on copper.
  • EXPERT LAND STEWART
    Available for site conservator, property manager. View resume at http://skills.ojadigital.net.
  • CONSERVATIONIST? IRRIGABLE LAND?
    Stellar seed-saving NGO is available to serious partner. Package must include financial support. Details: http://seeds.ojaidigital.net.