Overhaul of the 1918 Migratory Bird Treaty Act would not hold firms liable for ‘incidentally’ causing scores of bird deaths

By Juliet Eilperin and Sarah Kaplan, Washington Post

A rule change easing companies’ liability for killing birds would not cause unacceptable environmental harm, the Trump administration said in an analysis published Friday, clearing the way for it to finalize a major rollback before the president’s term ends on Jan. 20.

The administration, which is racing to lock in a series of regulatory changes before President-elect Joe Biden takes office, can now publish a final rule modifying the U.S. Fish and Wildlife Service’s interpretation of the 1918 Migratory Bird Treaty Act,

The act prohibits unauthorized “take” of protected bird species — regulatory-speak for hunting, killing, capturing, selling or otherwise hurting the animals. For three years, officials at the Interior Department have sought to exclude accidental deaths from the “take” definition, shielding energy companies, construction firms and land developers from prosecution if their operations “incidentally” kill birds.

The new analysis looked at three alternatives for interpreting the act: continuing to tacitly permit incidental take; codifying the interpretation that incidental takes are allowed; or strengthening the law to return to the historical understanding that companies are accountable for accidental killings. It suggested that all three options would “have incremental effects on current environmental conditions” but identified scaling back the rule as its “preferred alternative.”

The rule change is now open for a 30-day comment period, which ends Dec. 28. If finalized, it would set in stone the Interior’s Department’s current, narrow view of the law — making the policy easier for companies to understand but also making it more difficult for future administrations to reverse.

In a statement, Fish and Wildlife Service spokesman Brian Hires said the agency’s goal was to “provide legal certainty for the public” about what kinds of hazards to birds are permitted. He added it would make enforcement “across the country” more consistent and effective.

But the administration’s claim that the new rule wouldn’t cause significant environmental harm is contradicted by the rest of the analysis, said Audubon Society policy manager Erik Schneider.

The document suggests that the preferred version of the rule would “likely result in increased bird mortality,” because companies would have less of an incentive to adopt precautions to prevent birds from becoming ensnared or colliding with their operations. It also notes that permitting incidental take could have economic consequences from loss of beneficial ecosystem services and may hurt species that are important to Native American tribes.

Studies show that human activities are responsible for millions of accidental bird deaths every year. Hawks, owls and songbirds can mistake uncovered oil skim pits for ponds and get stuck when they attempt to scoop prey out of the sticky oil. Birds in flight suffer fatal crashes with communications towers or become tangled in telephone wires and power lines.

Trump has weakened more than 125 environmental policies. Another 40 rollbacks are underway.

Read the full story

Try our daily newsletter, EnviroPolitics, FREE for a full month