Environmental Groups Push Back Against Destructive Migratory Bird Rule, Proposed Alternatives

The Trump administration is using the “Miracle on the Hudson” event as an excuse to strip protections for migratory birds by undercutting one of our nation’s first conservation laws – the Migratory Bird Treaty Act (MBTA). Buried within the environmental impact statement, the Department of the Interior lists the detrimental impacts migratory birds have on humans, citing crop consumption, aquaculture impacts, and the Miracle on the Hudson, among others. It looks like the administration will stop at nothing to punish birds. 

On January 15, 2009, US Airways Flight 1549 struck a flock of Canada geese less than five miles from LaGuardia Airport in New York City. The plane lost engine power and pilots guided the plane into the Hudson River. All passengers were rescued in the river and all survived. The event was dubbed “Miracle on the Hudson.”

Yet just a little over a year after the Miracle on the Hudson event, another event, one more appropriately associated with the threats to migratory birds, occurred on April 20, 2010 when the Deepwater Horizon oil rig exploded in flames. The resulting oil spill took the lives of more than 1 million birds. 

“BP paid $100 million in criminal fines under the MBTA that supported wetland and migratory bird conservation. If Deepwater Horizon happened today, those criminal fines could not be imposed to remunerate for the many thousands of birds the company killed,” said Defenders’ senior vice president for conservation programs, Bob Dreher. “Congress and the Trump administration should defend the Migratory Bird Treaty Act instead of letting industry off the hook for unmitigated bird deaths.” 

Last month, the administration released a draft environmental impact statement (EIS) in support of its proposal to strip protections from migratory birds from harms caused by industrial activities, dramatically undercutting the law’s ability to conserve birds. Additionally, the U.S.  Fish and Wildlife Service failed to even study in detail the alternative of creating a reasonable permit system and how a system could address concerns about burdens on industry while protecting migratory birds.  

Today, environmental groups submitted comments to push back on the U.S. Fish and Wildlife Service’s proposed EIS and preferred alternatives to redefine the scope of the MBTA to not prohibit incidental take – the accidental, but completely preventable deaths of birds. We called on the FWS as our nation’s steward, “to conserve, protect, and enhance fish, wildlife, and plants and their habitats for the continuing benefit of the American people.” Groups asked that FWS immediately reverse course on the proposed action regarding the take of migratory birds and put an end to rubberstamping this rushed process to the detriment of migratory birds. 

Migratory birds are increasingly threatened by land development, habitat loss and the effects of climate change. “With a stunning 3 billion birds lost since the 1970s, the Trump administration is leaving the fate of more than 1,000 bird species in the hands of the oil and gas industry and other industries that harm birds daily. This callous new plan could kill millions of birds,” said Dreher. 

The Migratory Bird Treaty Act, a landmark law that protects and helped to restore populations of many bird species, turned 100 in 2018. The law has been applied for decades by federal agencies and the courts to protect birds not just from illegal hunting but also from being harmed or killed by industrial operations. However, in December 2017, the Trump administration abruptly reversed this longstanding policy by declaring in a Solicitor’s Opinion that the law now only covers activities that kill birds on purpose, exempting all incidental take by industry from enforcement. 

On January 30, 2020, the administration proposed a new regulation that seeks to codify the Department of the Interior’s controversial legal opinion, permanently weakening the ability of the Migratory Bird Treaty Act to protect our nation’s bird populations. That comment period on the proposal, which U.S. Fish and Wildlife Service announced with endorsements from multiple industry groups, just closed on March 19, raising serious questions as to how the agency could have appropriately considered the 200,000 substantive comments submitted before preparing the draft EIS.

Earlier this year, Rep. Alan Lowenthal (D-CA) and a group of 18 original bipartisan co-sponsors introduced the Migratory Bird Protection Act (H.R. 5552) to reverse the administration’s reinterpretation of the MBTA and reaffirm the law’s intent to protect migratory birds from industrial activities. The bill has garnered the support of nearly 90 members of the House since its introduction.

“The MBTA has been a critical tool for bird conservation for over 100 years,” Congressman Lowenthal said upon introduction of the bill. “Every Democratic and Republican presidential administration since the 1970s has interpreted and similarly applied the law, which has saved countless numbers of birds. The Trump Administration’s wrong-headed reinterpretation of the MBTA instead lets commercial interests off the hook when it comes to killing birds. My bill will reverse that by reaffirming and formalizing the MBTA protections.”