Trump Administration Pulls Protections for Migratory Birds

Despite nearly 200,000 public comments defending the Migratory Bird Treaty Act (MBTA) and a decisive loss in the federal courts, the administration is still trying to cement into law its (now illegal) plan to strip protections from migratory birds.  

“Even though a federal court already ruled that the Trump administration cannot eliminate protections for migratory birds, the administration continues its relentless campaign to undermine environmental protections and harm wildlife,” said Jamie Rappaport Clark, Former president and CEO of Defenders of Wildlife. “We will ask a Biden administration to restore protections for birds immediately and affirm that the Migratory Bird Treaty Act prohibits incidental take.”

A comprehensive study recently found that bird populations in North America are undergoing massive declines – a stunning 3 billion birds have been lost from the continent since 1970 – and this federal law is essential to conserving and recovering these populations.

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 unauthorized hunting but also from being harmed or killed by industrial operations or accidents, like the Deepwater Horizon oil spill. 

However, in 2017, the Department of the Interior issued a legal opinion that purported to reverse the government’s longstanding interpretation of the Migratory Bird Treaty Act as applying to incidental take by industrial activities, holding that the law can only be used to protect against intentional acts. The move was intended to end enforcement of the Act against oil spills and other industrial actions that kill birds. 

In May 2018, Defenders and a coalition of other environmental groups filed lawsuits challenging the Department of the Interior’s legal opinion.  

But on January 30, 2020, the Trump 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, waterfowl, songbirds, and raptors alike. While the comments included several endorsements from industries anxious to be relieved of the responsibility to protect birds from their operations, the overwhelming majority of the 200,000 public comments supported continuing protections for birds.

On August 11, 2020, the Southern District of New York declared the Trump administration’s attempt to strip the MBTA of incidental take protections illegal, upholding the long-standing previous interpretation of the Act. On October 9, the U.S. Department of Justice appealed the federal judge’s August 11 ruling. The appeal is still pending. 

Despite the district court’s ruling that the MBTA covers incidental take, the administration is continuing on a new track to codify the same legal opinion that the court overturned. Conservation groups plan to challenge the final rule.

Clark said of the proposed rule, “This time, migratory birds are the victims of the Trump administration’s reckless environmental policies. The new regulation, issued as the Trump administration is leaving office, is illegal and will not stand.”

Defenders is also working to secure heightened legislative protections for migratory birds, working with wildlife champions in both houses of Congress. Rep. Alan Lowenthal (D-CA) and a group of 18 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 in January 2020. Currently, 96 number House members have signed on to the bill. In the Senate, Sens. Van Hollen (D-Md.), Carper (D-Del.) and Feinstein (D-Calif.) have led multiple letters in urging the Trump administration to stop rollback of protections for migratory birds. 

“With birds facing threats from climate change and biodiversity loss, it’s time to pass the Migratory Bird Protection Act, and restore the Migratory Bird Treaty Act to protect the nation’s birds,” said Clark.