North America is experiencing a "massive reduction in the abundance of birds," warned a major study last year, part of an even broader mass extinction unfolding around the world. In the U.S. and Canada alone, the overall avian population has fallen by 29% since 1970, the study found, or nearly 3 billion birds.
Many conservationists say this warrants more protection for declining bird populations, since the threats behind the declines are largely ongoing or even growing. The Trump administration has opted to go the opposite direction, however, proposing a rule that would essentially decriminalize the killing of protected birds, as long as the killing was unintentional.
This is meant to provide "regulatory certainty," the U.S. Fish and Wildlife Service (FWS) states in a press release, concluding the death of birds from a particular activity "is not prohibited when the underlying purpose of that activity is not to take birds."
The rule would formalize what has been the Trump administration's policy since late 2017, when a solicitor for the Interior Department issued a memo arguing conservation laws should not apply to "incidental" killing of protected birds. The FWS has already stopped investigating most bird deaths, as The New York Times reported last year, and has even gone as far as discouraging local governments and businesses from taking steps to protect birds. While the policy is already in effect, codifying it like this will reportedly make it harder to overturn in the future.
This marks a major change for enforcement of the 1918 Migratory Bird Treaty Act (MBTA), which is "America's most important bird protection law," according to the National Audubon Society. The MBTA is credited with saving many important and iconic species from extinction, Audubon notes, including snowy egrets, wood ducks and sandhill cranes, as well as "millions, if not billions" of other birds.
The move will mainly benefit the fossil fuel industry, energy companies and large developers, as Chris D'Angelo reports for High Country News, by sparing them the cost of precautions to prevent unintended, but often predictable, bird deaths. In its announcement of the proposed rule, the FWS included an array of quotes from industrial advocates and politicians who support the move.
"The protection of migratory birds is important, and the statute should be applied as intended: to protect against intentional killing of birds, not to criminalize a broad range of commercial activities causing a significant chilling effect on industry and commerce nationwide, including mining," says Rich Nolan, president and CEO of the National Mining Association.
Accidentally killing birds is rarely prosecuted under the MBTA, as NPR's Merritt Kennedy points out, but it's not unheard of. The law served as partial grounds for a $100 million settlement with BP, for example, over birds killed by the 2010 Deepwater Horizon oil spill. ExxonMobil paid $600,000 in 2009 for killing 85 birds in five states, according to the Associated Press, the same year PacifiCorp was fined $10.5 million for electrocuting 232 eagles at power lines and substations. And in 2013, Duke Energy agreed to pay $1 million for the deaths of 14 eagles and 149 other birds at two Wyoming wind farms, which pre-dated Obama-era guidelines encouraging wind-energy companies to avoid sites that threaten wildlife.
But aside from actual enforcement, the potential for penalties fostered a culture of taking precautions to prevent bird deaths, conservationists argue. Now, by announcing that protected birds can be legally killed as long as killing birds isn't the goal, they worry the U.S. government is eroding that culture.
"The rule sends an irresponsible — and legally incorrect — signal to industry that common-sense measures to protect birds like the snowy egret, wood duck and greater sandhill crane are no longer needed," says Collin O'Mara, president and CEO of the National Wildlife Federation, in a statement.
For the birds
This stitched-together panorama shows a variety of migratory birds that died after colliding with buildings in Washington, D.C., in 2014. (Photo: USGS [public domain]/Flickr)
Birds face lots of dangers across the U.S., many of which are not caused by industrial activities. Cats kill some 2 billion birds nationally each year, according to the FWS, while vehicle collisions kill another 2 million or so. Industries do kill large numbers of birds, though, perhaps most pervasively with habitat loss, a leading cause of wildlife declines around the world. It's a broad problem that's harder to quantify, but even when it's excluded, industrial activities in the U.S. still kill an estimated 700 million birds per year.
Most of those birds are killed by collisions with glass, although large numbers also die from poisoning (72 million), collisions with electrical lines (25 million), collisions with communication towers (6 million), electrocution (5 million), oil pits (750,000) and collisions with land-based wind turbines (234,000), according to the FWS. The effect of an industrial project or activity often depends largely on its location — a glass facade, oil pit or wind turbine might pose little risk in one place, for example, but could prove deadly in prime breeding habitat or migration routes.
If companies know they can be fined for accidentally killing birds, they have an incentive to site their projects in safer locations, or to take other precautions that protect birds, critics of the rule argue. Under the proposed policy, however, the risk of penalty no longer exists unless a project's stated purpose is to kill birds, allowing companies to incidentally kill birds if safety precautions are deemed too expensive.
Since the 2017 memo was issued, this policy has already had an effect on industries as well as local governments, according to Catherine Kilduff, an attorney with the Center for Biological Diversity (CBD). Writing for The Hill, Kilduff cites waterfowl killed by a 2018 pipeline leak in Idaho, and raptors electrocuted by uninsulated power lines in North Dakota and Tennessee, as well as the recent destruction of a key bird habitat by the Virginia Department of Transportation (VDOT).
The latter was caused by a tunnel expansion project, whose threat to some 25,000 birds had originally prompted VDOT to consider ways of offsetting the damage, such as creating an artificial island to replace their lost habitat. In light of the Trump administration's new policy, however, those plans were abandoned, and the habitat was paved over. The birds are currently in their southern winter habitat, the Times reports, but when they return to Virginia this spring, they will find an unfamiliar landscape that may prevent them from reproducing.
There are also recent examples of states and companies voluntarily taking steps to protect birds, the Times adds, even after federal officials have said it's unnecessary. It would be unwise to count on that, however, according to Sarah Greenberger, senior vice president for conservation for the National Audubon Society. "I'm sure there are still conscientious actors who are taking steps," she tells the Times. "But we don't know that, and we don't know how long they will continue to do that, especially if their competitors aren't."
The MBTA is credited with saving several bird species, including the snowy egret. (Photo: óskar elías sigurðsson [CC BY 2.0]/Flickr)
The proposed rule was published in the Federal Register on Feb. 3, starting a 45-day public comment period. Written comments must be received on or before March 19, according to the FWS, either through an online portal, U.S. mail or hand delivery.
The Trump administration is already being sued over this policy, by a coalition of environmental groups as well as attorneys general from several states, and the new proposal may lead to additional lawsuits.
"With a recent study finding there are 3 billion fewer birds in North America than 50 years ago, you'd think we'd want more protection for birds, not less," says CBD endangered species director Noah Greenwald in a statement. "This rule violates the trust and will of millions of Americans who love birds and want them around for future generations to enjoy."