Biden Administration Moves to Protect Migratory Birds, Drops Trump-Era Court Appeal

The Biden administration today formally dropped an appeal of a federal district court ruling that rejected the Trump administration’s attempt to strip protections for birds under the Migratory Bird Treaty Act (MBTA). 

“Americans love birds, and for decades the Migratory Bird Treaty Act has protected thousands of our nation’s bird species from industrial harms,” said Jason Rylander, senior counsel, Defenders of Wildlife. “Left unchecked, the Trump administration’s attempted elimination of federal protections would have jeopardized billions of birds. The Biden administration made the right call in dropping this case.” 

The Biden administration’s move leaves in place an August 2020 ruling in which U.S. District Judge Valerie Caproni criticized the Trump administration’s argument that the Migratory Bird Treaty Act only applied to the intentional killing of birds and not “incidental” killing from industrial activities. Citing Harper Lee’s “To Kill a Mockingbird,” she rejected the Trump administration’s legal interpretation writing, “It is not only a sin to kill a mockingbird, it is also a crime.” The opinion went on to state that protection incidental take for migratory birds “has been the letter of the law for the past century.” 

In February 2021, on a parallel track, the Biden administration decided to delay the implementation of a related Trump administration rule that would have formalized their anti-bird legal interpretation. The Biden administration delayed the rule’s implementation until March 8 and reopened the issue for public comment. Today’s dismissal of the lawsuit has no bearing on the rulemaking process. 

According to the FWS, more than 45 million people watched birds around their homes and on trips in 2016. For many Americans, birds are our connection to the natural world. And for 100 years, the United States has protected its migratory birds from commercial and industrial threats. 

Even with the threat of MBTA enforcement, industry still kills millions of birds annually – birds die from uncovered oil pits, and collisions with electrical lines and communication towers. The MBTA has been the only tool that allows the government to hold bad actors accountable.
 
The most infamous example of a violation of the MBTA was 2010 BP Deepwater Horizon disaster which spilled more than 210 million gallons of oil in the Gulf of Mexico, killing more than 1 million birds over four years following the blowout. BP paid $100 million in fines under the MBTA, money that has been used to restore wetlands and support migratory bird conservation. Under the Trump administration’s new interpretation, however, the government could not seek the same remuneration to restore wildlife habitat for devastating oil spills, nor does industry still have the same incentive to work with FWS on best management practices. 

The time to protect migratory birds is now. Our bird populations are facing serious threats that have led to a decline of 3 billion birds in North America since 1970, while two-thirds of our bird species are at risk from climate change. 

The Biden administration’s legal action effectively restores the vital and longstanding protective legal interpretation of the MBTA that the Trump administration attempted to significantly weaken.  However, the near-gutting of the MBTA by the Trump administration highlights the fragility of migratory bird protections.  Congress should act to assure migratory birds are protected by addressing the vulnerability of current administrative protections. 

Rep. Alan Lowenthal (D-Calif.) introduced a bill last Congress that would protect our nation’s birds permanently – one that Rep. Deb Haaland, Biden’s nominee for Interior Secretary, supported. 

Defenders looks forward to working with Congress and the Biden administration to enshrine these protections for birds under the MBTA and create a new pathway for permitting under the law to help conserve birds and encourage practices that protect birds from the variety of threats they face.