By Kitty Block and Sara Amundson
The Trump administration, in its final days, is attempting to undo crucial, century-old protections for migratory birds as a handout to the construction and oil and gas industries.
A new rule published this week by the U.S. Fish and Wildlife Service would exempt industries from being prosecuted or penalized under the 100-year-old Migratory Bird Treaty Act if their actions, such as failure to cover tar pits or the spraying of banned pesticides, result in bird deaths.
If the deaths were unintentional, the FWS says in the rule, there will be no enforcement. “This rule simply reaffirms the original meaning and intent of the Migratory Bird Treaty Act by making it clear that 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 in a statement.
This is unacceptable. According to the Washington Post, the FWS’s estimates show that industry sources kill an average of 709 million birds each year, and up to 1.1 billion. Oil pits alone kill up to one million birds yearly.
Further exempting companies from accountability for the incidental take of birds will erode any incentive or motivation they currently have to take steps necessary to avoid harm to birds while implementing and maintaining their infrastructure projects, and will undoubtedly lead to higher number of birds dying in the future.
Birds already face unprecedented challenges to their survival because of climate change and other manmade threats like habitat loss, building and vehicle collisions, power lines, cell towers and other communications infrastructure development. A report in Science magazine last year found that North America has lost nearly three billion birds since 1970—a loss of more than one in four birds. A National Audubon Society study, also last year, reported that nearly two-thirds of North American birds are threatened by climate change.
The USFWS’s own analysis finds that many of the 1,027 species of birds protected under the Migratory Bird Treaty Act are experiencing population declines due to increased threats. Ninety-two species are listed as either threatened or endangered under the Endangered Species Act and an additional 274 species could become eligible for listing under the ESA without additional conservation actions to save them.
Given these numbers, it is astonishing that the agency would further exacerbate the challenges to the survival of migratory birds with this rule.
We have long worked to maintain and strengthen important protections for migratory birds. Years ago the Humane Society of the United States won a major lawsuit extending protections for more than 800 species of migratory birds to all federal agency actions. In the 116th Congress, the HSUS and the Humane Society Legislative Fund, along with a coalition of organizations, supported the Migratory Bird Protection Act, introduced by Reps. Alan Lowenthal, D-Calif., and Jefferson Van Drew, R-N.J. This legislation would reaffirm the act’s longstanding protections for birds from industrial hazards. We look forward to helping advance the bill in this Congress.
We are also extremely hopeful that this draconian rule will be short-lived. Conservation groups have challenged this concept in court in the past and prevailed, and they have promised to oppose the rule, which benefits no one but large industries looking to make bigger profits while shielding themselves from accountability for the negative impacts their projects may have on birds.
The Post cites a “blistering opinion” issued by U.S. District Judge Valerie Caproni in August, in which she quoted Harper Lee’s famous novel, “To Kill a Mockingbird” after deciding in favor of state attorneys general and conservationists who sued the administration.
“It is not only a sin to kill a mockingbird, it is also a crime,” Caproni wrote. “That has been the letter of the law for the past century.”
We couldn’t have said it better. Migratory birds make our world so much more beautiful and provide valuable ecosystem benefits, including pollination. Birdwatchers eagerly and avidly await their arrival each year. It is hard to imagine a world without them, and we urge the Biden administration to withdraw this terrible rule swiftly and definitively.
Sara Amundson is president of the Humane Society Legislative Fund.