Big News for Birds

The Biden administration is reinstating protections under the Migratory Bird Treaty Act and, promisingly, also signaling a commitment to do more for bird conservation than just reversing the previous administration’s wrongs.

While the agency’s Migratory Bird Treaty Act reversal is indeed good news, the true bright spot is a concurrent notice of an intent to move forward with an incidental take authorization program—an action that would be a watershed moment for modern bird protections.

An authorization program for industrial bird take has been elusive for many years, in large part because it is a huge endeavor—impacting more than 1,000 species—and because the agency found initial success in working proactively industry by industry to reduce impacts to birds. We are now at a crossroads, though, where the status quo leaves birds falling behind against the multiple crises inflicted upon them. 

For the Migratory Bird Treaty Act to remain a primary backstop in preserving our cherished birds for another hundred years, we must step up to the challenge, and a new rulemaking will provide just such an opportunity.

In a long-awaited action, the administration is also finalizing a withdrawal of the midnight Trump rule that illegally gutted the Migratory Bird Treaty Act and conferred broad immunity from prosecution to industry for indiscriminate killing of birds. Over the last few years, roughly 400,000 public comments have called for restoring protections that had been in place for a century, decrying this free pass to industry right when scientists were resoundingly warning of dire declines. 

Once in effect, the rule withdrawal and associated guidance announced today will reopen the door for the U.S. Fish & Wildlife Service to return to its previously long-standing implementation and enforcement against foreseeable and preventable industrial bird slaughters. This is welcome news to those who care about birds, whether backyard, rare, or imperiled birds, because this law protects almost every native bird species in our country.

Wiping the books of this ill-conceived rule is necessary but unfortunately not sufficient to address unprecedented bird declines. Without additional action by Congress or the administration, litigation is likely to continue swirling around the reach of the Migratory Bird Treaty Act and can severely blunt the durability and certainty of today’s action. 

In full disclosure, NRDC is in litigation over this issue and will work to ensure that strong bird protections are here to stay. NRDC will also continue supporting conservation-minded legislative solutions, like the Migratory Bird Protection Act, that can proactively put this issue to rest while dovetailing with our clean energy goals.