In a reprise of the first Trump administration, migratory birds are again facing weakened protections under federal law.
The issue at hand: Should companies be held responsible if birds are killed accidentally, for example in oil spills or waste pits?
The answer has ping-ponged back and forth in recent years under different interpretations of the Migratory Bird Treaty Act, one of the nation’s oldest environmental laws.
Now, as part of a sweeping suspension of legal opinions made by the Interior Department under President Joseph R. Biden Jr., the Trump administration is again prioritizing energy companies and other industries that do not want to be penalized when birds die accidentally because of their actions.
“It basically means that the Fish and Wildlife Service won’t take enforcement action against any private party that unintentionally kills migratory birds,” said Tara Zuardo, senior advocate at the Center for Biological Diversity. “It’s devastating.”
Had the Trump administration’s view been in place during the Deepwater Horizon oil spill in 2010, she said, BP would have avoided some $100 million in fines, money that went to bird conservation.
The oil and gas industry has long said it’s committed to protecting migratory birds. “We look forward to working with the Department of the Interior to advance common sense policies that both protect wildlife and support American energy dominance,” said Scott Lauermann, a spokesman for the American Petroleum Institute.
North American bird populations are sharply declining, down almost 30 percent since 1970. Scientists blame a host of factors including habitat loss, climate change, predatory outdoor cats, window strikes and shrinking insect populations. Deaths from industrial activities have not been identified as a leading factor, but conservationists say the law’s protections help keep it that way.
All 20 legal opinions issued during the Biden administration were suspended. In addition to migratory birds, they relate to issues such as a dispute over mineral ownership in North Dakota and the ability of the federal government to take land into trust for Alaskan tribes.
J. Elizabeth Peace, a spokesperson for the Interior Department, said the suspensions were temporary, to allow for a comprehensive review. “This is a routine process that ensures alignment with President Donald J. Trump’s policy priorities,” she wrote in a statement. “We will provide further updates as the review progresses.”
But John Leshy, the general counsel for the Interior Department during the Clinton administration, said he believed the breadth of the move was unprecedented. “I don’t know of any new administration that has ever done this — that is, simply advised decision makers not to follow existing solicitor’s opinions done in the previous administration without checking with us first,” he said. “I believe they are emboldened by the Supreme Court’s view of sweeping presidential power.”
What’s not new is the sparring over the migratory bird law, which was enacted in 1918 and has broad implications for both commercial activity and the environment. Hundreds of species, whether hummingbirds or eagles, are protected by the law.
In theory, accidental migratory bird death, officially called “incidental take,” has long been penalized under the law. But a series of contradictory court rulings resulted in inconsistent enforcement across the country.
In 2017, during the waning days of the Obama administration, a lengthy opinion by the agency’s solicitor general found that accidental killings were prohibited, in keeping with “longstanding interpretation.” But less than a year later, an opinion during the first Trump administration found that accidental killings were not prohibited. In 2021, Mr. Biden’s administration withdrew the Trump-era opinion. Now President Trump is suspending the Biden withdrawal.
In addition to the legal interpretation related to accidental bird killings, President Trump enacted regulations on the matter during his first term, a far more binding action. Nevertheless, President Biden revoked them.