In a potential boon for energy companies, the Trump administration is using its final few weeks in power to advance a new regulation that would explicitly limit a federal law protecting migratory birds to exclude those killed accidentally or unintentionally. 

The proposed regulation would clarify what types of actions are prohibited under the 1918 Migratory Bird Treaty Act (MBTA) by excluding the incidental take of migratory birds, according to a final environmental impact statement (EIS) prepared by the U.S. Department of the Interior’s Fish and Wildlife Service (FWS) and published Friday in the Federal Register. 

The proposed regulation, advancing in the waning days of the Trump presidency, would provide “legal certainty for the public” and “improve consistency and efficiency” in enforcing the MBTA, the FWS wrote.

“The strict liability standard makes any unauthorized taking of migratory birds an illegal action, regardless of intent,” the FWS wrote. “Historically, federal courts have interpreted the MBTA inconsistently, both by creating different exceptions to strict liability and in its application to incidental take…which has created a patchwork system of enforcement across the country.”

Energy companies, including oil and gas operators, would stand to benefit from narrowing the scope of the law.

From 2010 to 2018, most of the enforcement investigations into the incidental killing of migratory birds were of electrical or oil and gas businesses, about 47 investigations annually, according to the FWS. Fine collections under the MBTA during the same period totaled $105.8 million.

The regulation would reinforce the Trump Administration’s previous interpretation of the MBTA, an interpretation that has been challenged in court. A controversial legal opinion from a Department of Interior official in late 2017 was vacated by a federal district court earlier this year.

“It is not only a sin to kill a mockingbird, it is also a crime,” U.S. District Judge Valerie Caproni wrote in an August opinion. “That has been the letter of the law for the past century. But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”

In the EIS, FWS officials said they “respectfully disagree” with the court’s ruling, adding that the case “does not directly affect our rulemaking process and effectively underscores the need to codify our official interpretation of the MBTA’s application to incidental take.”


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Research suggests hundreds of millions, possibly more than a billion, of migratory birds are killed annually due to incidental take, with most of those resulting from collisions with building glass or with vehicles, according to figures published in the EIS.

Comments on the EIS are due by Dec. 28.