Rule change weakens migratory bird protections

WASHINGTON (AP) — Companies in the oil and gas and other industries will not be held legally responsible for killing migratory birds as long as they did not mean to do it, the Trump administration said, drawing swift condemnation from animal welfare and conservation groups.

The Interior Department rule change is a plus for oil and gas companies that sought weakened protections of birds in the administration’s waning days. The rule change came just two weeks before President-elect Joe Biden assumes the presidency, and on the heels of a new bipartisan conservation law protecting wetlands and waterfowl. The waterfowl-protection law that President Donald Trump signed Oct. 30 protects birds and bird habitats.

The Interior Department rule change on Jan. 5 coincides with a sharp decline in the overall population of birds in North America. The number of birds on the continent has dropped by 3 billion, about 30%, since the 1970s, according to a survey published in the journal Science in September 2019.

Under the new rule, the U.S. Fish and Wildlife Service “will not prosecute landowners, industry and other individuals for accidentally killing a migratory bird,” Interior Secretary David Bernhardt said. The agency said the change would not apply to the Endangered Species Act or the Bald and Golden Eagle Protection Act.

The change shifts how the federal government interprets and enforces the Migratory Bird Treaty Act of 1918. Fish and Wildlife will no longer fine or prosecute companies that cause birds’ death as long as they did not intend to kill the animals.

While the Interior Department can unwind the change under the Biden administration, that process will take time and require a new public comment period.

Underpinning the Trump administration’s move is a legal opinion by the Interior solicitor, Daniel Jorjani, who argued the law should only apply to birds killed deliberately rather than through “incidental” activities that kill millions of birds annually, such as oil spills and oil pits, as well as electric power lines and pesticides.

The American Petroleum Institute, the lead lobby for oil and gas in Washington, supported the law’s changes.

The Migratory Bird Protection Act protects more than 1,000 bird species such as eagles, cranes and geese. Misdemeanor violations can result in as many as six months in prison and fines of up to $15,000.

Environmental advocates say the pre-Trump interpretation of the law served to nudge oil companies to take preventative steps to protect birds, such as covering exposed oil pits and wastewater facilities.

“This brazen effort will most certainly be in vain as the administration already found out in court that it can’t unilaterally gut the Migratory Bird Treaty Act and its obligation to protect and conserve bird,” Sarah Greenberger, senior vice president for conservation policy at the National Audubon Society, said of the announcement.


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