Biden White House Signals Rollback of Trump Rule on Migratory Birds
Changes are again in store for companies seeking to comply with the Migratory Bird Treaty Act (MBTA). Last week, the Department of the Interior announced that it is rescinding a disputed Trump administration rule that limited the scope of the MBTA.
The MBTA criminalizes the taking, capture or killing of over 1,000 species of birds. It does not expressly exempt penalties for accidental deaths or “incidental take.” Historically, the MBTA has been used to impose penalties on companies who have caused bird deaths even through inadvertent actions. The act has had a profound impact on industries like oil refineries, windfarms and chemical manufacturers. For instance, the law was used after the 2010 BP oil spill to fine the company $100 million related to the death of hundreds of thousands of birds in the Gulf Coast.
Shortly before former President Donald Trump left office, on Jan. 7, 2021, his administration finalized a new rule that greatly limits the scope of the MBTA. Under the rule, the U.S. Fish and Wildlife Service declared that the MBTA covers only the intentional, and not incidental, killing of protected birds. The rule came with a controversial history. In late 2017, the Department of the Interior issued Memorandum M-37050 (the “M Opinion”), which concluded that only deliberate acts intended to take a migratory bird are banned under the MBTA. It removed penalties for all unintentional deaths.
Environmental groups challenged the Interior’s legal opinion. In 2019, the U.S. District Court for the Southern District of New York struck down the opinion, finding the memorandum contrary to the MBTA’s plain language. Still, the Trump administration moved forward with official rule-making to formally codify the legal opinion. The rule was finalized in January 2021.
Upon taking office, the Biden administration announced that it was opening the rule back up to public comment. On March 8, the Department of the Interior stated that it will issue a new proposal “in the coming days” to revoke the Trump-era rule in its entirety. We will provide an update when this new rule is proposed. Congress could also invoke the Congressional Review Act to overturn the rule.
The see-sawing interpretations of the MBTA come at a time when the Federal Circuit Courts are split on the issue, creating further uncertainty for businesses. In a 2015 ruling, the 5th U.S. Circuit Court of Appeals held that the MBTA does not bar the incidental take of covered birds. However, the 2nd and 10th Circuits have held that the MBTA does criminalize incidental take.
The Biden administration’s rule-making may take some time to finalize, creating a gap in enforcement for incidental take incidents. Even so, it is prudent for businesses to treat the MBTA as though it permits the penalization even of the accidental killing of covered bird species. Incidental take can occur in a wide variety of circumstances, such as by chemical and saltwater spills (which can attract birds), through the construction of roadways and railroads through nesting areas, by the operation of wind energy facilities and the like. Businesses should have heightened awareness of how their construction and operational activities might impact birds in the area, including commonly found species like American crows, Canadian geese and pelicans, all of which are covered under the MBTA.
Please contact David J. Topping or any other member of Phelps’ Environmental Law team if you have questions or need compliance advice and guidance.
