On the eve of the centennial of the Migratory Bird Treaty Act, one of the nation’s bedrock environmental laws, the Trump administration delivered a churlish anniversary present: It gutted the law.
Three days before Christmas, the U.S. Interior Department quietly issued a reinterpretation of the law, effective immediately. It freed private interests — most notably, energy companies — from criminal prosecutions and fines for the deaths of migratory birds killed by industrial practices.
The opinion is such an outlier that 17 former high-ranking government conservation officials, representing both parties, sent a letter to Interior Secretary Ryan Zinke denouncing it as a “new, contrived legal standard that creates a huge loophole in the MBTA, allowing companies to engage in activities that routinely kill migratory birds.” Signers of the letter included five of the six living former U.S. Fish and Wildlife directors and seven of the eight former migratory bird management chiefs who served under Presidents Nixon through Obama.
The Migratory Bird Treaty Act has provided the foundation of federal protection for birds in the United States since it was enacted in 1918.
It was first used to end the killing of birds for feathers in women’s hats, but its language is so clear and unequivocal — “it shall be unlawful to hunt, take, capture, kill … by any means whatsoever … at any time or in any manner, any [non-game] migratory bird” — that since the early 1970s, it has also been applied to the incidental killing of birds by industry. Thanks to the law, Exxon paid $125 million in fines for the deaths of more than 36,000 birds caused by the Exxon Valdez oil spill in 1989, and BP paid $100 million for the deaths of between 65,000 and 102,000 birds resulting from the Deepwater Horizon spill in 2010.
Even with the law in place, U.S. migratory bird populations are now a small fraction of their historic highs, chiefly because of habitat loss. Many species — including California’s burrowing owls, tricolored blackbirds, and Bendire’s and LeConte’s thrashers — are in jeopardy and may face extinction. Nevertheless, from now on, only intentional killings, such as those perpetrated by poachers, will qualify for prosecution and fines.
Of course, industry kills vastly more migratory birds than poachers do — as many as 1.1 billion a year, according to Brad Bortner, who was chief of migratory bird management at the Fish and Wildlife Service until December.
That number would be even higher if the law’s deterrent effect hadn’t helped persuade many companies to change their behavior. The techniques used to reduce deaths are often obvious and inexpensive, such as covering oil pits (which kill between 500,000 and 1 million migratory birds), siting wind turbines away from common bird routes (the turbines cause 140,000 to 500,000 deaths), and spacing power lines far enough apart so that long-winged raptors can’t electrocute themselves by touching two lines at the same time (900,000 to 11.6 million deaths).
The beneficiaries of the new interpretation of the MBTA include coal, gas, wind and solar companies, but the biggest winner is certain to be the oil industry, which has been the target of a majority of prosecutions under the law in the last two decades. Given the Trump administration’s heedless promotion of fossil fuels, this should come as no surprise. In fact, the opinion was written by Daniel Jorjani, a Trump appointee whose previous job was at Freedom Partners, a pro-free-market nonprofit funded by fossil fuel billionaires Charles and David Koch.
For California’s top officials, who profess to be both environmental champions and leaders of the Trump resistance, the migratory bird opinion creates an opening. By fortifying state protections, they could stand up to the president in a way that is virtually impervious to challenge. California’s Department of Fish and Wildlife has the authority to prosecute incidental killings of migratory birds, but it has been so short of funding and enforcement teeth that it has deferred to the more active federal Fish and Wildlife Service. With the feds sidelined, the state’s lawmakers ought to provide the funding and clout that the department needs to take up the battle.
“This is a moment for California to step up,” Mike Lynes, public policy director of Audubon California, told me. “This is a test for them to see whether they’ll put their money where their mouth is.”
The threat to birds follows a Trumpian playbook. In its dismissal of all or key parts of the Environmental Protection Act, the Clean Air and Water acts, and President Obama’s Clean Power Plan, the administration has signaled its intention to nullify environmental laws and regulations that impede fossil fuel extraction. It does this by legal reinterpretation — as with the Migratory Bird Treaty Act — or by reductions in enforcement efforts and agency destaffing. It doesn’t bother trying to pass legislation, which can be blocked. Never mind birds — the only part of the environment this administration cares about is what is under the ground, available for pumping.
Jacques Leslie is a contributing writer to Opinion.