From National Audubon: – The Department of the Interior announced today (March 8, 2021) that it will rescind the “M-Opinion” and legal directive implemented by the Trump administration which a federal court struck down last year. The administration also announced that while the final rule gutting critical MBTA protections goes into effect today, it will soon announce a new rulemaking process that could reinstate and strengthen those important provisions of the law.
The change by the Trump administration centered on the enforcement of “incidental take.” It attempted to limit the MBTA’s protection only to activities that purposefully kill birds, exempting all industrial hazards from enforcement. Any “incidental” death—no matter how inevitable, avoidable or devastating to birds—became immune from enforcement under the law. If this change had been in place in 2010, BP would have faced no consequences under the MBTA for the more than one million birds killed in the Deepwater Horizon oil spill.
“Today’s announcement sends an important signal that the administration will move to reinstate protections for migratory birds,” said Sarah Greenberger, senior vice president for conservation policy, National Audubon Society. “The moves announced by the Department of the Interior create a critical opportunity to strengthen the century-old law for the future. “We hope to see the administration use this new rulemaking process to add a reasonable permitting process to manage incidental take,” said Greenberger. “A permitting program is a common-sense approach to clarifying these longstanding protections and providing the certainty industry wants.”
“While it is disappointing that the Trump administration moved to finalize this unlawful rule, we’re confident that the Biden administration’s actions and the several other efforts underway will bring these protections back,” said Greenberger. “Birds are telling us they are in trouble and we are running out of time to act.”
The National Audubon Society and several other conservation organizations filed a federal lawsuit in January in the Southern District of New York challenging the Trump administration’s final rule and we will continue to pursue that challenge in an effort to void the illegal final rule. In August of 2020, in response to a previous lawsuit filed by Audubon, other organizations, and states, the Southern District ruled that the administration’s 2017 Solicitor’s Opinion did not align with the intent and language of the 100-year-old law, and overturned the policy.
“This lawsuit is necessary to challenge a plainly illegal policy and pursuing it could help shorten the amount of time the final rule is in place,” said Greenberger. “We also hope to see Congress pass the Migratory Bird Protection Act to clarify these longstanding protections and authorize this common-sense approach.”
The Migratory Bird Protection Act was passed out of the House Natural Resources Committee in the 116th Congress and had a bipartisan group of more than 90 co-sponsors. The bill would secure protections for birds and direct the Fish and Wildlife Service (FWS) to develop a permitting process for “incidental take” through which relevant businesses would implement best management practices and document compliance, further driving innovation in how to best prevent bird deaths. It would need to be reintroduced in this Congress in order to be considered again.