The bird population in North America has plunged by nearly a third over the past 50 years. That’s a loss of nearly 3 billion birds. And that’s even with regulations designed to protect vulnerable birds.
The losses could soon grow even worse. The Trump Administration now wants to essentially eliminate one of those protections: The Migratory Bird Treaty Act. You have only until March 19 to speak up to try to save it. You can leave a comment here.
Trump has spent his term undoing decades of environmental progress, which makes fights like these exhausting. But I think it’s important to speak up. Even former Interior Department officials who served under Republican presidents say his latest move is a terrible idea.
The Migratory Bird Treat Act is one of the oldest wildlife protection laws. It passed in 1918 and now covers about 1,000 species of birds, ranging from bald eagles to western sandpipers (they are the birds at the top of this post). If a bird is on the list, it’s illegal to kill it or possess it. About 10% of the birds on the list are endangered or threatened.
Already, Trump has effectively eliminated the law by changing the way it is interpreted. His administration believes the act applies only to people who explicitly intend to kill birds. Given that negligence kills far more birds than poachers, this interpretation makes nearly all migratory bird deaths legal — even when those deaths are easily preventable.
Worse, even electing a new president may not undo Trump’s effort. Trump is working to formalize his interpretation. If that happens, a new president would also be blocked from enforcing the Migratory Bird Treaty Act. They would have to go through a process to restore the old interpretation. The current comment process is about turning Trump’s interpretation into a formal regulation.
The crux of Trump’s argument is that it’s not fair to punish companies for killing birds if they did not actively try to kill them. It’s an argument that may sound reasonable until you consider how the act has been traditionally enforced.
In the U.S., industry kills more than 700 million birds per year, but there are not 700 million prosecutions. Enforcement has recognized the difference between accident and negligence. The act has been used to motivate companies to implement safeguards when their actions pose a significant threat to birds. Here are some examples.
As many as a million birds die in oil pits each year. Open oil tanks and pits pose a serious risk to birds, so it has become an oil industry practice to cover them with nets. ExxonMobil, however, left some pits and tanks open in five states from 2004-2009. After 85 birds died in them, the company was fined.
BP was fined under the act for the Deepwater Horizon oil spill in 2010 — the world’s largest marine oil spill. The spill dumped more than 200 million gallons of oil into the Gulf of Mexico, killing perhaps one million birds. A judge found the spill wasn’t a simple accident, but rather the result of a long pattern of gross negligence and reckless conduct. But if the same spill happened today, the company would not be liable for killing any birds. Already, federal wildlife agents have stopped investigating bird deaths from oil spills, according to records obtained by Reveal and the Center for Investigative Reporting.
Electrical equipment poses another risk for birds. More than 5 million are electrocuted each year. To reduce that risk, there are industry standards that prescribe safe distances between electrical wires and how equipment should be maintained. In another enforcement action, PacifiCorp, a utility in Wyoming that ignored those safeguards for years was fined after killing more than 200 golden eagles.
No electrical system is 100% safe, but utilities that try to protect birds generally have good relationships with wildlife agents. Ameren, which serves Illinois, discovered it could make its lines safe for birds by installing plastic covers over just one part of its poles. In just a few years, it reduced raptor fatalities by 90% while also making its electrical system more reliable. The few bird deaths its equipment is responsible for were treated as accidents, not violations of the law.
Wind turbines also present a threat to birds and they are frequently mentioned in arguments to weaken the Migratory Bird Treaty Act. Some argue renewable energy companies get free pass, which is not true. Duke Energy was fined for killing 163 birds at two of its wind projects in Wyoming. And the fine came only after the company disregarded safe practices that the wind industry helped develop. It also ignored repeated warnings from the Fish and Wildlife Service.
Trump’s policy twists ‘intent’ into a definition that just doesn’t exist elsewhere in the law. In most cases, if you know something could cause harm but you do it anyway, you are held responsible for damage or injuries that result. Driving while drunk. Leaving dangerous equipment out where children are likely to play with it. And so on.
But now when it comes to birds, anything goes. You could even put out a banned poison. You could not be prosecuted for killing birds if your goal was to kill something else.
We have been losing billions of birds even with regulations that are designed to help protect them. By completely eliminating consequences for actions that we know are dangerous to birds, I fear what the future will bring.
Leave a comment here with your thoughts on the reinterpretation of the Migratory Bird Treaty Act. Comments are due March 19.
Will your comment make a difference? No and yes. I expect Trump will push forward regardless of what the comments say, just as he did when the comments were almost unanimous against his plans to strip protections from national monuments.
But I also think that if we don’t comment, it’s a sign that we’ve given up. I haven’t. And I hope you haven’t either.