In the former administration’s final days, the US Fish and Wildlife Service published a rule that weakens the Migratory Bird Treaty Act (MBTA) by no longer penalizing individuals and corporations for the “incidental” killing of birds protected under the law. This codifies a 2017 policy reversing the agency’s decades-long interpretation that the MBTA prohibits the incidental killing of migratory birds. The new regulation was published despite a federal district court ruling in August 2020 that the policy was unlawful.
The regulation is primarily designed to benefit the oil and gas industry and electric utilities by shielding companies from liability for the millions of birds their operations kill each year. This removes the incentive for companies to adopt sensible strategies to reduce threats that their operations pose to birds. Birds die from colliding with buildings and infrastructure, being electrocuted by power lines, and being poisoned by oil spills and chemical holding ponds, among other hazards. This loss of protections comes at a time when birds are facing unprecedented threats due to habitat loss and climate change.
Thankfully, an executive order issued by President Biden in January required the USFWS to review the MBTA regulation and consider whether to suspend, revise, or rescind the rule. In response, the USFWS delayed its implementation and reopened the comment period to allow for additional input from the public. The USFWS subsequently rescinded the 2017 policy and announced that it will propose a new rule to restore federal protections.
AWI has consistently opposed the USFWS’s moves to weaken the MBTA. In 2018, we identified concerns with the 2017 policy in a letter to the USFWS and last year joined with the Southern Environmental Law Center and dozens of other organizations in submitting multiple comments opposing the regulation.