States Stand Up for Migratory Birds
Earlier this month, eight states — New York, California, Illinois, Maryland, New Jersey, New Mexico, Oregon, and Massachusetts — filed a lawsuit arguing that the Trump administration’s efforts to undercut a key conservation law are illegal and should be overturned. The law in question, the Migratory Bird Treaty Act (MBTA), was enacted in 1918 in the wake of the extinction of two once-common species, the passenger pigeon and Carolina parakeet, and the sharp decline in numbers of herons, egrets, cranes, and other species. With this lawsuit, these eight states, which span every migratory bird flyway in the lower 48, are standing up for birds and the MBTA’s critical importance in protecting state interests.
The MBTA regulates not only direct and intentional killing of birds via shooting and trapping, but also “incidental take” — that is, unintentional but predictable and avoidable killing — such as electrocution from a power line or asphyxiation in an oil pit. For example, more than 1 million birds were killed in the four years following the 2010 BP Deepwater Horizon oil spill. BP paid $100 million in fines under the MBTA — crucial dollars for cleanup and habitat restoration efforts along the Gulf Coast. The MBTA’s incidental take authority has also been the impetus for several industry sectors, including longline fisheries, oil and gas operations, pesticide applicators, electrical transmission, communication towers and wind energy, to work with the U.S. Fish and Wildlife Service to develop common-sense, cost-effective practices to reduce bird mortality.
Alas, the Trump administration has other ideas; namely that it can ignore decades of legal precedent, and common-sense protections for birds and instead cater to the whims of certain industrial interests who are disinclined to conserve bird species. In December 2017, the Department of the Interior issued a “solicitor’s opinion” (an official statement of how the department interprets a law) asserting that “the MBTA does not prohibit incidental take” and therefore only applies to “direct and affirmative purposeful actions” that kill birds (like shooting). This move basically tells companies that they can kill birds with impunity, as long as they don’t do so “purposefully.” It thus removes all incentive to continue developing and implementing common sense practices to prevent bird deaths, like putting nets over oil evaporation pits or bird diverters on power lines. Shockingly, under this new interpretation, BP would not have paid a single penny in 2010 under the MBTA. Seventeen former Interior officials condemned the new opinion, highlighting the MBTA’s successful history of reducing “gross negligence by companies that simply do not recognize the value of birds to society or the practical means to minimize harm.”
We are heartened by the fact that these eight states — representing more than 100 million Americans — are taking legal action to protect birds. The recently filed states’ lawsuit emphasizes just how important the issue is, and how far out of legal bounds Secretary Zinke’s Interior Department is in its interpretation of the law. The states’ suit aligns with litigation filed by Defenders of Wildlife and several other conservation organizations in May and contends that the new interpretation should be overturned because it runs contrary to “previous longstanding interpretation of the [MBTA] and decades of consistent application of that interpretation.” The states also declare that the new policy “harms the States’ sovereign, ecological and economic interests” due to the importance of healthy bird populations to pollination, insect and rodent control, and a “multi-billion-dollar wildlife watching industry.”
The cases will be heard in the Southern District of New York at a to-be-determined date.
