By John McFerrin
On its way out the door the departing administration has taken one final shot (metaphorically speaking) at migratory birds. It has made final a regulation which narrows the Migratory Bird Treaty Act so that it is less effective in protecting birds.
What this is all about
The Migratory Bird Treaty Act is the United States’ effort to implement a 1916 treaty between the United States, Mexico, and Great Britain (agreeing on behalf of Canada) to protect birds that migrate among the three countries. The treaty was later expanded to include Russia and Japan. It prohibits pursuing, hunting, taking, capturing, killing, or attempting to do the same migratory birds, their nests, or their eggs
For a century everybody–agencies, the birds, the public, everybody—assumed that the Migratory Bird Treaty Act protected birds from all killing, whether specifically intended or not. Going out and intentionally killing a bird was, of course, prohibited. Doing something such as destroying habitat that also resulted in the deaths of birds was also prohibited, even if the primary purpose of the habitat destruction was something other than killing birds.
This fight is over what the Act means. Does it protect birds just from intentional killing? Or does it protect birds whose deaths are a result of activity that had another purpose but birds just had the bad luck to get in the way?
For example, neither the Atlantic Coast Pipeline nor the Mountain Valley Pipeline had as an objective killing birds. They just want to get gas from one place to another. If birds get killed, they get killed. It’s just their bad luck to be in the way. The Migratory Bird Treaty Act (as interpreted before 2017) required both pipelines to take steps to avoid killing birds, steps which they both took without squawking, at least in public.
The new interpretation is a disaster for birds. Having four and twenty blackbirds baked in a pie is so 18th Century. I have never even seen a hat adorned with a Snowy Egret plume, a fashion trend once a serious threat to Snowy Egret populations. If the Act only protects birds from being baked into pies or hunted for their feathers—things that are not happening anyway—it is meaningless.
The accidental threats to birds are enormous. There are oil pits and spills, high-tension power lines, communications towers, etc. Birds can die when they land on an uncovered oil waste pit that appears to be an ordinary pond, or run into an unseen power line. According to studies, power lines kill up to 64 million birds a year. Communications towers are estimated to kill up to 7 million birds per year, and uncovered oil waste pits account for up to another 500,000 to 1 million bird deaths every year. Data on wind turbines are harder to come by, but current estimates are approximately 234,000 bird deaths a year.
While the Migratory Bird Treaty Act has not saved all birds from these threats, it has acted to reduce the threats. It has done so both by the rare prosecution (14 in the last two decades) and by encouraging companies to come up with innovative ways to avoid bird deaths. If the new interpretation stands, that protection is gone.
Legal twists and turns
Before 2017 the interpretation of the law was largely stable. It protected birds in the rare instances when their killing was the goal of the activity. It also protected birds from killing when some other activity with some other goal resulted in their deaths.
The 2017 interpretation changed that. It said that the century of interpretation was wrong and that the Act only prohibited killing of birds when that was the purpose of the activity. If someone wanted to build a pipeline (or a windmill, an oil well, etc.) and happened to kill birds, that was just the birds’ bad luck.
The new interpretation appeared in two forms. First, the lawyer for the Fish and Wildlife Service issued a formal opinion, saying that only intentional killings were prohibited by the Act. At about the same time, it proposed a new regulation interpreting the Act as prohibiting only intentional killings.
Opinions of lawyers are the most ephemeral of interpretations. A new lawyer, a new set of political priorities, etc. can come along and along comes another opinion saying that the law means something else.
Regulations are sturdier. They take longer to put in place but are harder to change.
The opinion of the Fish and Wildlife lawyer was smacked down, and smacked down hard, by a United States District Court. Several groups sued the Fish and Wildlife Service, claiming that its interpretation was incorrect. The Court agreed. It ruled that the Act meant what most people had always thought it meant. Birds were protected in all circumstances, not just when someone set out with the goal of killing them.
The regulation, however, plodded ahead. The Fish and Wildlife Service did an Environmental Impact Study, took and considered (more or less) comments from the public, and made final the rule with the more restrictive interpretation of the Act. It became final in early January, 2021.
Hope for the birds
One source of hope is that many companies have reacted to the change by saying that they like birds as much as the next person and that they will continue with past practices to protect them. Relying upon companies for protection when those companies no longer face even a remote threat of prosecution is a thin twig to perch on but if that’s what birds have then that’s what they have.
A more substantial basis for hope is that we have a new President. The new regulation does not take effect until early February. A new President could direct that the Fish and Wildlife Service not implement the new rule immediately and that it needs further study before implementation. The rule could then disappear into the great governmental black hole labeled “further study.” The Fish and Wildlife Service would continue operating as it always had pending the results of the “further study.”
If the rule does become effective, a new administration could always change it. This involves a long, detailed process. It took the Trump administration almost four years to change the rule. While many rules do move faster than that, it would still be a long process.
This hope became more substantial when the President Biden made an executive order “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” As part of this Executive Order, it distributed a fact sheet listing the regulations that it wanted to review. The list included The Regulations Governing Take of Migratory Birds.
An Executive Order with a fact sheet is not a thunderbolt. Being on the list does not assure that the new regulation will disappear. The Fish and Wildlife Service and the Department of the Interior could review it and decide that it likes the new, restricted regulation. At the same time, if the Biden administration thought the new regulation was entirely satisfactory it would not be on the list. If it ain’t broke, etc.
Congress could also take action under the Congressional Review Act. This Act allows Congress to review regulations promulgated by agencies. While this Act became law in 1996, it was seldom used until 2017 when Congress used it to revoke some dozen regulations promulgated late in the term of President Obama. Both the House and the Senate must act within 60 days and the President must sign a resolution overturning a regulation. It requires only a majority, with no filibuster allowed.
With President Biden having an agenda of his own and the usual hurly burly in Congress, it is impossible to predict whether Congress would use the Congressional Review Act but the tool is there if anyone wants to pick it up and use it.
The birds also have lawyers riding to the rescue. Several groups—most prominently the National Audubon Society—have filed suit challenging the new regulation.
Finally, there is the Migratory Bird Protection Act. It would amend the Migratory Bird Treaty Act to make it perfectly clear that it protects all migratory birds, even when their death is not the purpose of the activity. It was introduced last year but never made much progress. It could be introduced again. Now that there is a new President, a new Congress, etc. it might do better.