The Department of the Interior’s Fish and Wildlife Service published an analysis of the 1918 Migratory Bird Treaty Act that paves the way for the Trump administration to roll back companies’ legal liability for killing birds.
The amended regulation would allow the administration to codify its interpretation of the law, which excludes “incidental take” — the unintentional killing of birds — from the enforceable bird deaths.
Under the interpretation, it’s possible that events like BP’s Deepwater Horizon explosion would no longer leave companies liable for the hundreds of thousands of birds killed by those incidents. Because of the Migratory Bird Treaty Act and the enforcement of incidental take, BP paid a $100 million settlement that went toward funding wetland restoration in the United States.
In spite of the department’s decision, the report repeatedly acknowledged that including incidental take in the Migratory Bird Treaty Act’s enforcement would be “likely positive.”
“The threat of enforcement would likely incentivize more entities to implement best practices,” the report reads. “Increase in implementation could lead to positive indirect effects on migratory birds. … Many best practices provide benefits to [animals] other than birds. Anticipated increase in implementation of best practices would likely result in positive effects on other [animals]. Habitat protection and restoration from use of fines would likely benefit vegetation and wildlife.”
The report also concluded that the majority of environmental consequences from redefining the Migratory Bird Treaty Act would be “likely negative.”
In August, a federal court stopped the department’s first attempt at weakening the protection, according to the Washington Post. In that decision, the judge ruled that “if the Department of the Interior has its way … migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”
In the report, the department argued that “federal courts have interpreted the MBTA inconsistently, both by creating different exceptions to strict liability and in its application to incidental take.” The revised Migratory Bird Treaty Act, the administration argued, would clarify the law and prevent such inconsistencies, “thus provid[ing] legal certainty on the application of the MBTA to incidental take.”
The report also noted that the law as it stands only affects migratory birds. That’s roughly 4 billion birds a year, according to a study from Cornell University.
The Department of the Interior’s findings come after a 2019 study published in Science journal found that North American songbird populations have declined by nearly one-third since 1970, the equivalent of 3 billion birds disappearing.
