Biden Administration Takes Steps to Reinstate Migratory Bird Protections After Trump Rule Struck Down by Court

As bird-lovers celebrated World Migratory Bird Day on May 8, new science had already determined that in the last half century around 3 billion birds in North America had been lost, and that two-thirds of the continent’s feathered friends today are at risk due to climate change.

That’s why the Biden administration this month began a new rulemaking process to formally withdraw the Trump administration action that removed “incidental take” protections from the Migratory Bird Treaty Act.

According to the Audubon Society, the Biden team in March rescinded the “M-Opinion” implemented by the Trump administration, which was struck down in federal court last August, a decision that unequivocally upheld the most effective bird conservation law on the books.

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The change by the Trump administration to the 100-year-old Migratory Bird Treaty Act (MBTA) was aimed at limiting the protection only to activities that purposefully kill birds, but 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.

Johannes Plenio

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“We hope to see the administration follow quickly with another rulemaking to establish a reasonable permitting approach for incidental take,” said Sarah Greenberger, senior vice president of conservation policy, National Audubon Society. “A permitting program is a common-sense approach to clarifying these longstanding protections and providing the certainty industry wants.”

“We need a multi-front approach to ensure the MBTA remains as a strong foundation for bird protection well into the future,” said Erik Schneider, policy analyst, National Audubon Society.

“In addition to action by the administration, we hope to see the Migratory Bird Protection Act reintroduced and passed in this Congress. Together, these actions will strengthen the MBTA from future attacks and offer stability and certainty for birds and businesses.”

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A bill had been approved by a House Committee in Congress during the final two years of Donald Trump’s presidency, which had a bipartisan group of more than 90 co-sponsors, that would secure protections for birds and direct the Fish and Wildlife Service to develop a permitting process for “incidental take” to drive businesses to implement best management practices and document compliance.

But this new Congress would need to begin the process again, and get a majority vote on the bill in both the House and the Senate if it wants to make its own statement that, in the judge’s words, “to kill a mockingbird… is a crime” when you know you can avoid it.

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