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Billion Birds at Risk as U.S. Pushes Final Rule Ahead of Biden

Nov. 27, 2020, 3:40 PM

Companies whose wastewater pits, oil spills, and other operations accidentally kill more than 1 billion migratory birds a year could avoid fines under regulations the Interior Department is moving to finalize.

The U.S. Fish and Wildlife Service on Friday published its final environmental review for a proposed rule that would codify a 2017 interpretation of the century-old Migratory Bird Treat Act so that only intentional migratory bird killings would result in fines.

Previous administrations have used the law to fine companies for accidentally killing migratory birds, known as “incidental take.” Attorneys and advocates widely expect the incoming Biden administration to explore ways to reverse the rule, which is scheduled to be finalized after a 30-day review period ending Dec. 28.

“The Service is finalizing its regulations to provide legal certainty for the public regarding what actions are prohibited under the Migratory Bird Treaty Act, which is necessary to improve the consistency and efficiency of the Service’s enforcement actions across the country,” the Fish and Wildlife Service said in a statement provided by agency spokesman Brian Hires.

More Bird Deaths Likely

Companies won’t know how the federal government plans to enforce the bird act, known as MBTA, until the incoming Biden administration signals what steps it wants to take, said Brooke Marcus Wahlberg, a natural resources lawyer and partner at Nossaman LLP in Austin.

Up to 1.3 billion migratory birds each year are poisoned, electrocuted on electric power poles, or killed in oil pits, wind turbines, power lines, and collisions with buildings, according to Fish and Wildlife Service estimates.

The new rule would lead to more widespread killings of migratory birds, and companies would be less likely to implement best practices to protect them, the agency said.

“Negative impacts on migratory birds are expected to increase over time, as more entities react to the certainty that incidental take is not prohibited under the MBTA,” according to the final environmental review.

But the new rule would allow companies to save money because they’ll know that regulators won’t fine them for killing birds, the agency said in its review.

Energy companies operating in the Gulf of Mexico, for example, would avoid fines for the mass deaths of birds from an oil spill similar to the BP Deepwater Horizon disaster.

Environmental groups blasted the Fish and Wildlife Service for moving forward with the proposal.

“The Trump administration’s decision to give polluters carte blanche to kill birds is not just illegal, it’s cruel,” said Noah Greenwald, endangered species director at the Center for Biological Diversity. “With scientists warning birds are disappearing from our skies, now is not the time to relax rules on killing them.”

The final version of the review deletes an earlier reference to the 2009 U.S. Airways “Miracle on the Hudson” flight, which crashed in the Hudson River after birds struck both engines. The Fish and Wildlife Service had referred to the flight in its draft review, released in June, to illustrate that birds pose a threat to human life.

Biden’s Steps

Interior is finalizing the rule despite an August court ruling in the U.S. District Court for the Southern District of New York striking down the legal basis for it. The court said Interior Solicitor Daniel Jorjani’s interpretation diminished the act to a “hunting-regulation statute, preventing it from addressing modern threats to migrating bird populations.”

Jorjani appealed the case in October to the U.S. Court of Appeals for the Second Circuit. The case is pending.

Other courts have upheld Jorjani’s MBTA interpretation. Interior, in its rulemaking proposal, cited appellate court rulings in the Fifth, Eighth, and Ninth Circuits that it said questioned the traditional interpretation of the act.

The court rulings may be moot after President-elect Joe Biden takes office. The Interior Department is expected to withdraw Jorjani’s 2017 opinion and then “identify a course of action to return to the previous interpretation and enforcement approach,” said Ann Navaro, a partner at Bracewell LLP in Washington.

“I am confident that the Biden Administration will look for a way to suspend or repeal the new rule fairly quickly,” Navaro said.

Finalizing the rule won’t provide companies much certainty about its future implementation, Nossaman’s Wahlberg said.

“I think at the end of the day, whether or not the rule exists doesn’t mean the U.S Fish and Wildlife Service is going to prioritize enforcement of MBTA against incidental take,” she said.

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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