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Analysis: Lose the law that saves migratory birds

A USFWS law enforcement officer removes a swallow that fell into an uncovered oil pit. Photo by Pedro Ramirez.

From the autumn 2020 edition of Living Bird magazine. Subscribe now.

Ten years after the worst oil spill in American history, environmental watchers warn that the Trump administration has significantly weakened many Obama-era regulations designed to prevent another such disaster. And the government has also gutted the enforcement of the country’s oldest bird protection law, similarly ditching future polluters for the death of birds.

In May 2019, almost exactly nine years after the Deepwater Horizon explosion, the Federal Office for Safety and Environment announced major changes to the regulations for offshore drilling. The agency said this would “ensure safety and environmental protection, correct mistakes and reduce certain unnecessary regulations under the current regulations. “Many of the changes have been sought by the American Petroleum Institute, despite warnings from a bipartisan presidential commission following the Deepwater spill that API’s wish list would weaken supervision.

“The real strength of the Migratory Bird Treaty Act is not that it is often used for litigation, but that it is really effective in getting the industry on board to avoid that damage.

In December 2017, the administration issued a legal opinion that random removals do not fall within the scope of the Law on the Treaty on Migratory Birds – the fundamental federal law on the protection of wild birds. Instead, the government said, the MBTA should only pursue measures aimed at killing birds. Using this logic, BP would dodge the $ 100 million fine paid for killing 1 million birds and violating the MBTA in the Deepwater accident. According to the law, this money had to be used for the restoration of birds. In August 2020, a federal district judge put down the administration’s legal opinion. However, the government is pushing for the removal of minor inspections from the MBTA to be formally codified ahead of the November 2020 election, meaning the industry would no longer be criminally liable if operations – even negligent – resulted in preventable bird deaths.

According to Amanda Rodewald, senior director of conservation science at the Cornell Lab of Ornithology, this new interpretation would effectively neutralize the MBTA as most human-related bird deaths are unintentional. This would not only limit the relatively infrequent law enforcement actions for monstrous events such as oil spills, it would also eliminate the highly effective tool to get the industry to fix problems in advance, e.g. For example, reconfiguring power poles to avoid electric shock and covering oil pans in which flocks of waterfowl sink and die.

The changes “remove strong and effective incentive agencies to encourage the industry to take proactive steps to reduce the harm to birds,” Rodewald said. “We have a long history showing that the real strength of the Migratory Bird Treaty Act is not that it is often used in litigation, but that it is really effective in getting the industry on board to deal with that damage to avoid.”

Bird attorneys do not accept the new legal interpretation.

“It is one of our top priorities to retract this legal opinion, whether through government lobbying or legislative action,” said Karen Hyun, vice president of coastal protection for the National Audubon Society.

One such legislative path is the Migratory Bird Protection Act, a law first introduced at the US Congress in 2019 and now supported by two co-sponsors with the support of both parties. Confirm the invoice[s] that the prohibition of the Migratory Bird Treaty Act on the unauthorized taking or killing of migratory birds includes accidental taking through commercial activities “and would restore the MBTA’s enforcement powers. It was elected from the committee in January, but at the time of going to press the bill was not being taken up by the entire House of Representatives.

A spokesman for the US Fish and Wildlife Service who proposed the controversial reinterpretation answered questions about the rule change with the words “legal clarity and security”. A variety of other federal laws, the spokesman said, “continue to protect publicly held natural resources, including migratory birds,” including the Oil Pollution Act, the Endangered Species Act and the Bald and Golden Eagle Protection Act. The spokesman also said the agency “will continue to work with our industrial partners to minimize the impact on migratory birds.”

There was a reason, Hyun said, that the Justice Department used the MBTA after the BP burial (and many other such disasters) in addition to other federal laws.

The law “provided direct and criminal liability for negligent acts that resulted in the death of significant numbers of birds that other laws do not,” she said. “These penalties will then go directly to the birds affected by the spillage through being distributed through the North American Wetlands Conservation Fund.”

Hyun noted that the USFWS, in its own draft environmental statement justifying the reinterpretation, recognized that the MBTA fine from the BP spill “protected and restored several hundred thousand acres of priority wetland habitat for the protection of migratory birds.”

“This could not have happened under her new and unprecedented interpretation,” said Hyun.

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