A coalition of national environmental groups filed litigation on May 24, 2018 “National Audubon Society v. Department of the Interior, in the Southern District of New York” challenging the Administration’s move to eliminate longstanding protections for waterfowl, raptors and songbirds under the Migratory Bird Treaty Act (MBTA).
In a legal opinion issued December 22, 2017, the Administration abruptly reversed decades of government policy and practice — by both Democratic and Republication administrations — on the implementation and enforcement of the MBTA.
The Act’s prohibition on “taking” (killing) of migratory birds has long been understood to extend to incidental take from industrial activities — meaning unintentional, but predictable and avoidable killing. Under the Administration’s revised interpretation, the MBTA’s protections will apply only to activities that purposefully kill birds. Any “incidental” take — no matter how inevitable or devastating the impact on birds — is now immune from enforcement under the law.
The risk of liability under the MBTA has long provided the oil and gas industry, wind energy development companies and power transmission line operators with an incentive to work with the US Fish and Wildlife Service to minimize bird deaths.
For example, in an effort to protect migratory birds and bats and avoid potential MBTA liability, the wind industry, conservation groups and the US Fish and Wildlife Service (USFWS) worked to develop comprehensive guidelines aimed to ensure best practices for siting and developing wind farms. The Administration’s new policy eliminates this incentive for industries and individuals to minimize and mitigate foreseeable impacts of their activities on migratory birds, putting already declining populations of songbirds and other migratory birds at risk.
The MBTA also protects birds from fossil fuel development. Oil pits kill hundreds of thousands of birds — if incidental take liability is eliminated, the oil industry need no longer take measures to protect birds from these hazards.
Furthermore, when the 2010 BP Deepwater Horizon disaster spilled more than 210 million gallons of oil in the Gulf of Mexico more than 1 million birds were killed in the four years following the blowout. BP paid $100 million in fines under the MBTA which supported wetland and migratory bird conservation. The new interpretation would bar the federal government from seeking such mitigation under the MBTA for oil spills in the future.
There have already been a number of changes made to the Endangered Species Act (ESA) also, but there are more proposals which would weaken the ability of the federal government to protect endangered and threatened species and habitat before Congress now. They reduce the USFWS’s ability to secure the protection of plant and animal species in peril, and at the same time make it easier to remove species from the protection of the Act. The proposals would also remove the guidelines to ignore economic impacts when deciding how to protect wildlife.
If these proposals are enacted, wolves along with other endangered and threatened wildlife and plants will be left to the mercy of the more economically-minded states.
See also the Senate’s Endangered Species Act Amendments of 2018
What’s going on?
According to the PBS Newshour, “since its passage, the Act has helped reverse and stop declines in numerous species – from bald eagles to Lake Erie watersnakes – and served as a model for similar laws around the world. Nevertheless, criticism of the law has been a persistent feature of debates about whether and how to protect imperiled species. That criticism often comes from business and agricultural interests, who argue that the Act’s provisions excessively limit their ability to develop and manage private property.”
What to do?
This Administration’s goal to deregulate the federal government seems to be without regard for the environment or how this might impact the future of the Earth and its residents. If you feel strongly one way or the other about the ramifications of the changes to the Act, please contact your congressman. Go to House.gov and Senate.gov to find their contact information.
*The coalition includes American Bird Conservancy, Center for Biological Diversity, Defenders of Wildlife, National Audubon Society, National Wildlife Federation and the National Resources Defense Council.