The Trump administration is reinstating, despite a judge's ruling, plans to weaken the Migratory Bird Treaty Act, which helps protect numerous species, including the Great Blue Heron/USFWS
Five years after a federal judge blocked Trump administration efforts during his first term to weaken the Migratory Bird Treaty Act (MTBA), the president has reinstated the same provisions across most of the country.
At issue is whether businesses can be liable for "incidental takes" of migratory birds, instances where birds are killed by industrial activities, such as the deaths of birds that land on an uncovered pond of hazardous wastes.
Back in August 2020 the judge, Valerie Caproni of the Southern District of New York, ruled that the so-called Jorjani Opinion lacked needed substance — "the Opinion is riddled with ambiguities made only more apparent by the incoherent guidance FWS subsequently issued." — and was counter to the Interior Department's "prior longstanding position and enforcement practices" under the treaty.
"... the Jorjani Opinion’s interpretation runs counter to the purpose of the MBTA to protect migratory bird populations," Judge Caproni noted in her ruling released. "Despite strong textual support for that purpose, the Opinion freezes the MBTA in time as a hunting-regulation statute, preventing it from addressing modern threats to migrating bird populations.
The Jorjani Opinion was written in 2017 by Daniel Jorjani, a deputy solicitor in the Interior Department. It held that penalties under the treaty could be applied only to intentional acts — hunting and trapping, for instance — that killed migratory birds.
A coalition of national environmental groups, including the American Bird Conservancy, Center for Biological Diversity, Defenders of Wildlife, National Audubon Society, National Wildlife Federation filed lawsuits in May 2018 challenging the Department of the Interior’s move to eliminate protections for waterfowl, raptors and songbirds under the MBTA, which marked its 100th anniversary in 2018.
Despite the judge's ruling, the Trump administraton late in Donald Trump's first term tried to implement the changes through the U.S. Fish and Wildlife Service. The Biden administration overturned the rule. Last week President Trump signed a memo overturning that action and putting the Jorjani Opinion back in force everywhere but within the jurisdiction of the Southern DIstrict of New York.
His action drew the ire of conservation groups.
“Rolling back these kinds of protections for migratory birds such as snowy owls, red-winged blackbirds, and white pelicans will undoubtedly result in the deaths of tens of thousands of birds,” said Daniel Moss, senior government relations representative at Defenders of Wildlife. “This action is particularly egregious as we approach the 15th anniversary of the Deepwater Horizon explosion which resulted in catastrophic mortality rates for sea birds. Only thanks to the MBTA, BP was forced to pay $100 million in fines. Weakening this law by giving businesses a free pass to do harm is the exact opposite of what our government should be doing.”
At the Center for Biological Diversity, Tara Zuardo said "Trump is breaking the law and flouting a court order by handing the fossil fuel industry and polluters this blank check to kill millions of migratory birds. The United States has lost billions of birds over the past 50 years and that decline will accelerate horrifically because of this callous, anti-wildlife directive. No one voted to slaughter hummingbirds, cranes and raptors, but this is the reality of Trump's illegal actions today."
Furthermore, Zuardo told the Traveler on Monday that, "[T]his is 100 percent illegal and goes beyond just putting out a new opinion we disagree with; it’s a direct violation of a court decree. But he clearly feels that he is above the law."
"Still, the problem, of course, is enforcement. Even though he resurrected an illegal solicitor’s opinion that a court already ruled is illegal under the Migratory Bird Treaty Act, prohibiting incidental take all comes down to enforcement, so if Department of Interior has announced that there will be no enforcement, we have widespread harm to birds, albeit illegal harm," added Zuardo.
The move to weaken the act comes as billions of birds have gone missing since 1970, according to a Science article referenced in 2019 State of The Birds report.
According to that report, the Ruddy Turnstone, a shorebird, has seen its population plummet 80 percent since 1974; the population of Baltimore Orioles has fallen 44 percent since 1970; and the numbers of the Northern Bobwhite have dropped by 78 percent since 1970. As a group, species of shorebirds, many of which are migratory, have declined 37 percent since 1974, grassland birds have plunged 53 percent since 1970s, and forest species have fallen 22 percent since 1970, the report notes.
At Defenders of Wildlife, officials said the MBTA's prohibition on the killing or “taking” of migratory birds "has long been understood to extend to incidental take from industrial activities—meaning unintentional but predictable and avoidable killing."
According to the National Audubon Society, industrial operations kill millions of birds annually:
- Power lines: Up to 64 million birds per year (Source: http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0101565)
- Communication towers: Up to 7 million birds per year (Source: http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0034025)
- Oil waste pits: 500,000 to 1 million birds per year (Source: http://www.ncbi.nlm.nih.gov/pubmed/16988870)
- Oil spills: The 2010 Deepwater Horizon oil spill is estimated to have killed more than 1 million birds (http://www.audubon.org/news/more-one-million-birds-died-during-deepwater-horizon-disaster)
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