ST. PAUL, MINN. (January 30, 2020) – Today the U.S. Fish and Wildlife Service is expected to announce a proposed rule that eliminates the Migratory Bird Treaty Act's (MBTA) prohibition on the killing or "taking" of migratory birds from industrial activities, such as birds flying into uncovered oil pits or other predictable and avoidable killing – also known as “incidental take.” That policy change first appeared in a 2017 Department of the Interior legal opinion (M-37050), but with this rulemaking it would be cemented as an official regulation.
“This is incredibly concerning news for Minnesota’s birds,” said Rob Schultz, executive director of Audubon Minnesota. “Common Loons are just one of the hundreds of species of birds that are protected by the Migratory Bird Treaty Act (MBTA). The new rule, proposed by the Trump Administration, would cripple the MBTA and greatly limit punishment for careless perpetrators.”
This policy change has been denounced by 17 former Interior Department officials from administrations on both sides of the aisle and 500 organizations that are dedicated to conserving wildlife. The announcement comes at a time when a recent report in Science documented that North America has lost 3 billion birds since 1970, and an Audubon report found that two-thirds of North America’s birds are threatened by climate change.
Under the Trump administration's revised interpretation, the MBTA’s protections apply only to activities that purposefully kill birds, exempting all industrial hazards from enforcement. Any “incidental” death—no matter how inevitable, avoidable or devastating the impact on birds—becomes immune from enforcement under the law.
Audubon filed suit in May 2018 challenging that opinion. Eight states filed a similar suit in September 2018. In July 2019, the district court gave a greenlight for the lawsuit to advance. And this January, the U.S. House Natural Resources Committee voted to advance the Migratory Bird Protection Act, a bill that would counter this rollback and add new innovations to the century-old law.
For decades, the U.S. Fish and Wildlife Service has worked with industry to advance common sense precautions like covering oil waste pits so birds don’t mistake them for safe ponds; insulating small sections of power lines so raptors don’t get electrocuted; siting wind farms away from bird migration routes and habitats. The law has also provided accountability and recovery after oil spills like the Deepwater Horizon. BP paid a $100 million MBTA fine for the death of an estimated one million birds, which is restoring habitat for birds impacted by the spill. Under this new policy, oil companies will be off the hook for any bird deaths under the law.
In 2018, in celebration of 100th anniversary of the Migratory Bird Treaty Act, more than 60 cities, counties or states passed proclamations in celebration of the MBTA’s success.
Facts and figures on industrial causes of bird mortality in the United States:
Power lines: Up to 64 million birds per year (Source: http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0101565)
Communication towers: Up to 7 million birds per year (Source: http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0034025)
Oil waste pits: 500,000 to 1 million birds per year (Source: http://www.ncbi.nlm.nih.gov/pubmed/16988870)
Oil spills: The 2010 Deepwater Horizon oil spill is estimated to have killed more than 1 million birds (http://www.audubon.org/news/more-one-million-birds-died-during-deepwater-horizon-disaster)
Policy and Engagement Manager