Interior Fast Tracks Roll Back of Bird Protections

The U.S. Fish and Wildlife Service is rushing to finalize its proposed rule codifying the Trump administration’s rollback of the Migratory Bird Treaty Act (MBTA). A just-released draft environmental impact statement confirms that the Service is poised to ignore any science or public input that stands in the way of issuing regulations to support Interior’s reckless rewrite of one of our oldest and most important laws protecting birds.

Sandhill cranes flying and wading on the Platte River in Nebraska during their spring migration.

Larry Crist/USFWS

Congress enacted the MBTA over a century ago with a singular statutory purpose to preserve birds. The Supreme Court upheld the Act shortly thereafter and stated,

Here, a national interest of very nearly the first magnitude is involved…But for the treaty and the statute, there soon might be no birds for any powers to deal with. Missouri v. Holland, 252 U.S. 416 (1920).

The Trump administration flouts this significance entirely, instead inaccurately describing the MBTA as directed towards hunting and poaching while writing off protecting birds as too much of a burden for industry. NRDC is already in court challenging Interior’s December 2017 Solicitor’s Opinion and our latest filing details why.

At its core, Interior’s unlawful reinterpretation immediately pulled the plug on common-sense bird protection measures that prevented thousands of foreseeable bird deaths from industrial activities—such as netting toxic waste pits or avoiding tree-clearing during nesting seasons. Interior’s decision also rescinded the Service’s authority under MBTA to recover mitigation funds for bird deaths from man-made disasters, such as the 2010 Deepwater Horizon oil spill.

A brown pelican heavily oiled by the Deepwater Horizon disaster standing on a beach in Grand Isle, Louisiana.

Courtesy of the Office of Governor Jindal

The Service is now piling on to this wrongheaded measure with a proposed rulemaking. But to be clear, Interior’s gutting of the MBTA is already in effect and has been for over two years. The Service is now reverse engineering a regulation and environmental review to accompany it. And in the process is ignoring devastating impacts to birds and a barrage of concerns from the public, Congress, former Interior officials, state wildlife agencies, tribes and scientists.

Instead of addressing the concerns submitted in over 180,000 comments opposing its proposed rule, the Service has restricted the scope of its environmental review to a simple yes or no nod to regulations supporting Interior’s MBTA reinterpretation – counterintuitively labelled the “no action” alternative. This is a calculated move to dodge a true environmental analysis, as required by the National Environmental Policy Act, instead focusing on legal certainty for industry and glossing over impacts to birds.

Not only has Interior set forth a rubberstamp process, but the administration highlighted over 28 supportive quotes from the oil and gas industry and other supporters of their proposed MBTA rule when first announcing the proposal in March. This advanced notice and bias prompted criticism from former officials and a call for an Inspector General investigation for violating basic press relations norms and fairness policies.

While most of us have had our lives completely upended over the last three months, the Trump administration has exploited the global pandemic to speed up their unravelling of our bedrock environmental laws. The MBTA fits squarely into this disgraceful strategy. As Interior races to avoid potential Congressional Review Act claw-backs, the agency appears willing to pay any price to relieve oil and gas and other industries from responsibility for needless bird deaths.

Protect the Migratory Bird Treaty Act

About the Authors

Katie Umekubo

Senior Attorney, Lands Division, Nature Program

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