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WASHINGTON — The Trump administration will move as early as Thursday to weaken a century-old law protecting migratory birds by dropping the threat of punishment to oil and gas companies, construction crews and other organizations that kill birds “incidentally” in the course of their operations.
The proposed regulation, if finalized, would cement a legal opinion that the Department of Interior issued in 2017. The agency’s top lawyer argued that previous administrations had interpreted the Migratory Bird Treaty Act of 1918 too broadly and that only actions explicitly intended to kill birds should be forbidden under the federal law. The death of a bird from an oil slick, the blade of a wind turbine or the spraying of illegal pesticides would no longer trigger penalties.
That interpretation has already had significant consequences for thousands of migratory birds. According to internal agency documents recently obtained by The New York Times, the Trump administration has discouraged local governments and businesses from taking simple precautionary measures to protect birds, and federal wildlife officials have all but stopped investigating most bird deaths.
With the White House in uncertain hands after 2020, the Trump administration is moving quickly to finalize dozens of regulatory rollbacks and other actions to weaken environmental protections viewed as burdensome by industry.
In recent weeks, the administration has scrapped a clean water regulation aimed at protecting streams and wetlands, and blocked an effort to require Americans to use energy-efficient light bulbs. Within the next month the administration plans to weaken vehicle emissions standards and a rule restricting mercury, a toxic chemical emitted from coal-burning power plants. Completing the rule curtailing the Migratory Bird Treaty Act before the November presidential election will be difficult, but the agency has indicated it will push aggressively to do so.
“It’s a race against the clock,” Bob Dreher, senior vice president of conservation programs at Defenders of Wildlife, an environmental organization, said of the proposed regulation.
Any legal guideline, like the one now governing bird-death enforcement, can be easily overturned; the 2017 opinion on “incidental” avian deaths reversed guidelines written by the Obama administration to enshrine the government’s ability to fine and prosecute those who accidentally kill migratory birds. Dreher noted that codifying the opinion into regulation, as the Trump administration is trying to do, would make it harder for a future Democratic president to issue a quick reversal.
“They’re trying to entrench this as much as they can, and get stuff locked into place,” he said, but added, “We’re going to fight it.”
Six conservation groups and eight states have already sued to block the underlying legal opinion. Last week, a group of former Interior Department officials from both Republican and Democratic administrations filed an amicus brief in support of the lawsuit.
Oil industry officials argued that they have worked voluntarily to protect birds and will continue to do so. They also accused the Obama administration of abusing the law by singling out oil and gas companies for prosecution. The new rule, several business leaders said, brings regulatory certainty to companies worried that bird deaths would make them criminally liable for millions of dollars.
The Migratory Bird Treaty Act makes it illegal “by any means or in any manner” to hunt, take, capture or kill birds, nests or eggs from listed species without a permit. Beginning in the 1970s, federal officials used the act to prosecute and fine companies up to $15,000 per bird for accidental deaths on power lines, in oil pits, in wind turbines and by other industrial hazards.
In 2010, the Deepwater Horizon disaster killed 11 people and spewed more than 210 million gallons of oil into the Gulf of Mexico. Hundreds of thousands of birds were killed, and BP agreed to pay $100 million for criminal violations under the Migratory Bird Treaty Act.
Under the current legal guidance and the proposed regulatory changes, that incident would no longer trigger criminal liability because the birds were killed unintentionally. Illegal acts are also protected under the plan. For example, a farmer who sprayed a banned pesticide that killed birds would not be held liable as long as the birds were not the “intended target.”