Migratory Bird Rule Likely Shelved Until After November Election

A new rule imposing penalties for migratory bird killings associated with energy development, construction, and poaching is unlikely to be proposed by the Interior Department before the end of the current presidential term, legal experts say.

Interior Secretary Deb Haaland said in 2021 that the rulemaking for implementing the Migratory Bird Treaty Act was a priority, but a proposal that was scheduled to be finalized this spring was recently withdrawn from Office of Management and Budget review.

Without the rule, developers are unsure how the MBTA will be enforced, and prosecutions have been too rare to counter the decline of the bird population, advocates say.

The US and Canadian bird population has declined by nearly 3 billion birds since 1970, with warblers and sparrows accounting for the greatest losses, according to Cornell University research. Declining migratory birds include the common nighthawk, grasshopper sparrow, burrowing owl, and black tern, among many others, according to the American Bird Conservancy.

The rule was expected to create a permitting program for bird killings, affecting nearly any construction project anywhere “because migratory birds are everywhere,” said Tom Jackson, special counsel at Baker Botts LLP in Washington.

The rulemaking, vigorously opposed by the fossil fuels and mining industries, has been in the planning stages since the Interior Department announced in 2021 that it would write a new rule after scrapping a Trump administration rule lifting fees on bird killings.

Haaland issued an order in 2021 clarifying that the Biden administration will interpret the MBTA as prohibiting all accidental and unpermitted migratory bird killings until the new rule is implemented.

That’s concerning for anyone in the wind power energy industry or who owns tall buildings because they have to live with legal uncertainty, said Caleb Kruckenberg, an attorney for the Pacific Legal Foundation.

The department’s Fish and Wildlife Service “has formally taken the position that it is a crime if a migratory bird happens to die because of your activity,” he said.

Scores of Bird Deaths

The Interior Department said at the time that a new rule is essential because 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.

Ninety percent of migratory bird deaths are related to oil and gas operations, and a primary focus of the new rule would be to fine oil companies for killing birds in oil spills, Fish and Wildlife Service officials said in 2021. The agency permits some bird killings necessary for industrial activity, deaths known as “incidental take.”

That was a reversal of the Interior Department’s position on the MBTA during the Trump administration. The department issued a legal opinion in 2017 saying the MBTA punishes only intentional bird killings. A federal judge threw out that opinion in 2020, saying it fails to align with the act’s intent.

Previous administrations used the act for more than a century to punish accidental bird killings. The Obama administration fined BP Plc $100 million for accidentally killing many thousands of birds as a result of the Deepwater Horizon oil disaster.

After sitting on the shelf for more than two years, the new MBTA rule isn’t coming anytime soon.

“During the interagency review of the proposed rule to authorize the incidental take of migratory birds for certain activities under the Migratory Bird Treaty Act, the Service received technical comments that require additional evaluation,” Fish and Wildlife Service spokeswoman Vanessa Kauffman said. “We will take this time to ensure any future rulemaking works to both protect birds and provide regulatory certainty to industry and stakeholders.”

The Fish and Wildlife Service’s withdrawal of the rule from OMB suggests that it’s not likely to be advanced before the general election, said Sandi Snodgrass, partner at Holland & Hart LLP in Denver.

“If Biden is re-elected, we could see a reinvigoration of this effort,” she said.

‘Spotty’ Enforcement

The need to enforce the MBTA is critical because bird populations are suffering as birds crash into buildings and die at industrial sites, said Eric Glitzenstein, director of litigation for the Center for Biological Diversity.

The Biden administration has done little to enforce the MBTA, even regarding high-profile events such as the mass bird collision in Chicago in October, in which nearly 1,000 migrating songbirds died in one night, he said.

Biden administration enforcement of the MBTA has been “spotty,” Snodgrass said.

“There have been some enforcement actions for fatalities at oil and gas facilities,” she said. “But FWS does tend to exercise its prosecutorial discretion to not pursue enforcement when project proponents are taking good-faith efforts to avoid incidental take.”

The Fish and Wildlife Service referred questions about MBTA enforcement to the Justice Department, which did not respond to a request for comment.

Since Haaland announced the MBTA rulemaking process in 2021, the Justice Department has undertaken at least 14 MBTA enforcement actions, according to the department’s environmental crimes bulletins published since then.

The Justice Department’s MBTA enforcement has focused mainly on migratory bird trafficking and single incidents of intentional killing. One energy company has been prosecuted for MBTA violations.

In 2022, ESI Energy Inc. was fined $1.86 million plus $6.2 million in restitution for three MBTA violations involving bald and golden eagles killed at two wind farms in Wyoming and one in New Mexico. The Justice Department said the company was responsible for at least 150 eagle deaths at 50 wind farms nationwide since 2012.