The Interior Department is soon expected to release a proposal that would sweep away possible criminal prosecutions for oil and gas companies, wind and solar energy firms, ranchers, farmers, and developers who harm migratory birds.
If eventually finalized, as expected, the proposal would undo decades of established practice. For at least the last 50 years, the Migratory Bird Treaty Act has been interpreted as forbidding the killing, injuring, or capture of any covered bird species or their eggs or nests, even if done by accident.
That strict liability approach would come to an end under the expected changes: Only intentional migratory bird killings would count as violations of the statute.
That could mean the roughly 1,000 species covered under the statute would essentially lose their protections, according to Sarah Greenberger, senior vice president of conservation policy at the National Audubon Society.
“When you build a wind tower, your purpose is not to kill a bird,” Greenberger said. “Your intent is to create energy. When you build an oil waste pit, your intent is to get rid of oil waste, not to trap birds.”
The statute helped the federal government secure a $100 million settlement from Exxon Mobil Corp. for the 1989 Exxon Valdez oil spill, according to Greenberger. She said that settlement wouldn’t have been possible under the expected changes from the Trump administration.
‘Sword of Damocles’
The oil and gas industry backs the move.
“The U.S. oil and natural gas industry supports protection of migratory birds, and it is clear that the Migratory Bird Treaty Act should not be used for overzealous enforcement of criminal penalties on those engaging in otherwise lawful activities,” the American Petroleum Institute told Bloomberg Environment in a statement.
In December 2017, the Interior Department said in a memo that bird deaths prohibited by the Migratory Bird Treaty Act should apply “only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.”
As previously formulated, the Migratory Bird Treaty Act “hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed,” the memo said.
Action Expected Post-Shutdown
The rulemaking is significant because the memo could be undone by a future administration. Once a new approach is formally issued as a regulation, it could only be reversed by another rulemaking, which would likely encounter opposition and court challenges.
Bird species that could be affected include the western meadowlark and great blue heron, which are vulnerable to oil waste pits; the brown pelican, common loon, and tufted puffin, which have been killed or injured in large numbers by oil spills in recent decades; and the red-tailed hawk and great horned owl, which are at high risk of electrocution from transmission lines, according to the National Audubon Society.
The proposal hasn’t been published yet, but the Trump administration has given signs that it’s coming. Following the December 2017 memo, Interior listed a proposal to “define the scope” of the law in its fall 2018 regulatory agenda. At the time, the department said it would publish a notice of proposed rulemaking in November.
Since then, environmental groups that oppose the proposal say they have been expecting it any time and now think it will be released shortly after the government shutdown ends.
“It could be days after the shutdown ends,” Brett Hartl, government affairs director for the Center for Biological Diversity, said. “We just don’t know.”
The Interior Department didn’t respond to a query about its plans.
‘Example of Astute Governance’
Interior’s approach is “an example of astute governance that provides certainty for responsible owners and operators of oil and natural gas facilities,” API said in its statement. “The opinion reinforces the original intent and text of this law and provides assurance to many others who engage in everyday and commercial activities like farming, mining, and operating wind turbines and solar facilities.”
Mike Speerschneider, senior director of permitting policy and environmental affairs at the American Wind Energy Association, said, “We haven’t seen any specifics, but would be interested to review a proposal from the administration that clarifies MBTA liability risk.”
“Whatever the proposal, our industry will continue to take actions, such as following the U.S. Fish and Wildlife Service Wind Energy Guidelines and focusing on ongoing research and conservation efforts, to minimize our already small impacts to birds,” Speerschneider said.
Attorneys general from California, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, New York, and Oregon filed a lawsuit last May to challenge Interior’s 2017 memo.
The National Audubon Society, joined by three other groups, and the Natural Resources Defense Council, joined by one other group, filed lawsuits May 24 in the U.S. District Court for the Southern District of New York arguing that the policy violates federal laws.
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