IA Law Review: Legal Legacies – The Migratory Bird Treaty Act of 1918: Deregulation’s Effect on American Avifauna

 

By Vynateya Purimetla(’21)

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Introduction and Context

 

The Migratory Bird Treaty Act (MBTA) was a law passed by Congress in 1918, codifying a treaty between the United States and the United Kingdom (acting on behalf of Canada), that protected billions of native birds from extinction or near-extinction from corporations and individuals. This century-old law protects birds from power lines (which kill 64 million birds a year), communication towers (which kill 7 million birds a year), oil waste pits (which kill 1 million birds a year), and wind turbines (which kill 234,000 birds a year). The MBTA covers nearly all native birds in the United States, covering more than 1,000 species and is a part of an international conglomerate of treaties with 5 countries to protect the avifauna of the world.

Now, when this law is more integral to protecting birds than ever, the Trump administration has repealed vital language protecting birds from ‘incidental’ deaths when Republican Rep. Liz Cheney changed language in H.R. 4239. The striking of this language removes incentives from businesses to adopt bird-protecting practices and eliminates a host of penalties on violators. This language change is vitally important. For example, if this policy was in effect during the Deepwater Horizon disaster, BP would not have been liable for the ‘incidental’ deaths of more than 1 million birds and $64 million worth of BP settlement funds would not have been paid to protect and restore more than 350,000 acres of bird habitat. Since 99% of bird harm is accidental, Trump’s administration’s change of the MBTA has effectively scrapped a century-long precedent protecting indigenous birds from extinction.

However, this move by the Trump administration is not uncommon, in fact, it’s in unfortunate accordance with its policy of deregulation. President Trump and his administration, along with Republicans in Congress, are staunchly focused on gutting environmental protections that they see as a hindrance to the fossil fuel industry. During President Trump’s tenure, he has rolled back 58 environmental protections and is in the progress of dismantling 37 more. The majority of these reversals are related to air pollution and emissions, drilling and extraction, and infrastructure, however, President Trump has rolled back 10 laws conserving animals. 

 

 

Department of Interior’s Position vs. Environmental Groups’ Position

 

Trump’s Department of Interior’s position on the MBTA directly contrasts with the former Obama administration view. In fact, the DOI explicitly issued a new opinion stating their interpretation “is contrary to the prior practice of this Department”. The DOI goes on to state that their removal of the word ‘incidental’ is actually beneficial, claiming: “interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions”. These statements by the DOI have been positively met by members of the Trump Administration, the fossil fuel industry, the drilling and extraction industry, and large energy companies. All of these industries’ support of the DOI position prove that the removal of the word ‘incidental’ allows these industries to cut their bird-protecting measures that are longer required by federal law.

The DOI’s position comes in strong contrast with prominent environmental groups, however. Katie Umekubo of the NRDC states the “Trump administration’s reckless actions threaten irreversible loss of birds”. Her statement is supported by David O’Neill of the National Audubon Society who comments “the MBTA serves as a common-sense tool to protect birds from preventable deaths” and that the DOI’s change is a “misguided, short-sighted attack by the Administration”. Mike Leahy of the National Wildlife Federation actively opposes this change by stating “the MBTA… has been weakened by recent misinterpretations of the law at the DOI” and that “there is no sense in poking holes in a century-old, proven method of success when one-third of America’s wildlife is at increased risk of extinction”.

These incendiary exchanges prove the DOI’s recent deregulation measures have been met by strong opposition by environmentalists. However, these conservationists’ laments have fallen on deaf ears as President Trump’s administration is making no noticeable effort to stop these deregulations- in fact, even moving further to the other side. President Trump’s deep connections to the fossil fuel industry and negation of climate change has led to his changes of the DOI, EPA, and DOE. President Trump’s DOI is led by Sec. David Bernhardt, a former oil and gas lobbyist. Andrew Wheeler, the head of the EPA is a former lobbyist of the coal company Murray Pruit and has been steadily undoing regulations to benefit fossil fuel companies. The DOE is headed by Energy Sec. Rick Perry, who once proposed fully eliminating the DOE and was on the board of a fossil fuel group (Sunoco Logistic Partners) and a pipeline-supporting group (Energy Transfer Partners). All of these appointees by the Trump Administration go to prove that environmental interests are not accurately represented in the federal government and the MBTA is unlikely to be restored.

 

 

Retraction’s Direct Effects

 

President Trump’s gutting of environmental protections leaves a strong message on the federal government’s position on climate change. In November of 2018, after being asked if he believed in climate change’s economic impact, President Trump replied with: “I don’t believe it”. This context could possibly provide a reason President Trump pursues deregulating protections like the MBTA, because he simply doesn’t believe in the broader effect climate change has on the environment. Over his incumbency, President Trump has even referred to global warming as “mythical”, “nonexistent” and an “expensive hoax”. The President’s position on climate change, alongside the shrinkage of other environmental protections, paints a crystal-clear picture of the federal government’s motives for gutting the MBTA.

The retractions also raised international tensions with Canada and Mexico, as this modification of language runs afoul of the treaty agreement made decades ago. President Trump has proposed a new trade deal with Canada and Mexico, replacing the previous NAFTA agreement. However, with the Trump administration’s violation of the long-standing MBTA precedent, a creation of mistrust between these three countries is sure to emerge.

Most impactfully, the deregulation directly poses an existential threat to all endangered birds in the United States and will lead to the inevitable near-extinction or extinction of hundreds of species. With the death of 30 billion birds since 1970, the MBTA was a landmark regulation protecting the indigenous American bird population. Without its vital protections, companies are no longer required to cover tar pits (that birds mistake for ponds) with nets, make power lines more visible, or flash communication tower lights.

 

 

Broader Animal Protection Deregulation

 

This deregulation effort is regrettably not the Trump administration’s only animal protection rollback. It comes in conjunction with 7 completed animal protection abridgements with 3 others in progress. 

Most notably, the Trump administration changed the application of the Endangered Species Act, which exposes American wildlife to long-term destruction from the ravaging effects of climate change. The dismantling of a bedrock conservation law shows the Trump administrations’ uncomfortable ease with putting threatened species below fossil fuel industry interests. This short-term preference for industry profits opens the door to the further endangerment of species like the bald eagle, grizzly bear, and American alligator. By allowing regulators to put economic considerations, for the first time in American history, over environmental concerns when deciding if a species deserves protections sheds light on the Trump administration’s priorities.

Furthermore, President Trump withdrew limits on the amount of marine mammals and sea turtles that can be killed and injured by sword-fishing nets. This once again shows how the MBTA is not a lone case where the administration chooses profits over protection. Additionally, the Trump administration loosened fishing regulations to allow for extended seasons and overturned a ban of hunting predators in Alaskan wildlife reserves- all of which have been met by staunch yet unheard opposition from environmental groups. 

This broader context of deregulation and the administration’s lack of concern for centuries of precedent protecting endangered animals shows that the MBTA is unfortunately one of many.

 

 

Conclusion and Possible Mitigations

 

Although the MBTA has been made effectively obsolete, there have been legislative attempts to mitigate the reversal’s effects. Democratic Representative Alan Lowenthal of California’s 47th district has introduced the Migratory Bird Protection Act (H.R. 5552) alongside 18 bipartisan co-sponsors to restore the language of ‘incidental’ to the MBTA. Section 2(a). of the bill explicitly tries to insert “incidentally take” and Section 14(a). proposes “it shall be a violation of this Act for any person to incidentally take a migratory bird as a result of a commercial activity except as authorized by this section and regulations issued pursuant to this section”. Although it may pass the House of Representatives due to a Democratic majority, it is unlikely to pass the Republican-controlled Senate, whose Majority Leader Mitch McConnel of Kentucky has failed to bring environmental bills even to a vote on the Senate floor. Unfortunately, the only efficient action that has been taken on the MBTA is by the fossil fuel industry and the Trump administration in opposition to it.

With 3 billion birds disappearing from the continent since 1970 and the establishment of thousands of bird species as near-extinction, the dismantling of a 100-year old bedrock law protecting birds comes as a blow to conservationists and environmentalists. Although advocates are desperately vouching for MBTA’s necessity and are shocked at the Trump administration’s position on the environment, these laments are falling on deaf ears. From attempting to close the EPA (an agency created by a Republican administration half a century ago) to being the only U.S. President to to put economic considerations squarley over environmental concerns, President Trump’s denial of environmental issues exists. Unfortunately, with the change to the MBTA, millions of American birds won’t.

 

 

 

Works Consulted

 

Action, CAP. “Here’s Everything You Need to Know About Trump’s Fossil Fuel ‘Mafia.’” Medium, Medium, 21 Aug. 2019, medium.com/@CAPAction/heres-everything-you-need-to-know-about-trump-s-fossil-fuel-mafia-54eda20f4a8b.

Ballhaus, Rebecca. “Trump Says He Doesn’t Believe Climate-Change Report’s Economic Predictions.” The Wall Street Journal, Dow Jones & Company, 26 Nov. 2018, http://www.wsj.com/articles/trump-says-he-doesnt-believe-climate-change-reports-economic-predictions-1543269363.

Canada, Mexico, and the United States Need Each Other, http://www.bushcenter.org/catalyst/north-american-century/canada-mexico-us-need-each-other.html.

Cheung, Helier. “What Does Trump Actually Believe on Climate Change?” BBC News, BBC, 23 Jan. 2020, http://www.bbc.com/news/world-us-canada-51213003.

Cochrane, Emily, and Lisa Friedman. “House Democrats Push Environmental Bills, but Victories Are Few.” The New York Times, The New York Times, 10 Jan. 2020, http://www.nytimes.com/2020/01/10/us/politics/environment-climate-democrats-congress.html.

Friedman, Lisa. “U.S. Significantly Weakens Endangered Species Act.” The New York Times, The New York Times, 12 Aug. 2019, http://www.nytimes.com/2019/08/12/climate/endangered-species-act-changes.html.

Green, Janet. “The Federal Government and Migratory Birds: the Beginning of a Protective Policy.” Historical Papers, vol. 11, no. 1, 1976, p. 207., doi:10.7202/030811ar.

January 08, 2020. “Congress Acts to Restore Vital Protections for Migratory Birds.” NRDC, 8 Jan. 2020, http://www.nrdc.org/media/2020/200108-2.

Lowenthal, and Alan S. “Text – H.R.5552 – 116th Congress (2019-2020): Migratory Bird Protection Act of 2020.” Congress.gov, 15 Jan. 2020, http://www.congress.gov/bill/116th-congress/house-bill/5552/text.

Popovich, Nadja, et al. “95 Environmental Rules Being Rolled Back Under Trump.” The New York Times, The New York Times, 2 June 2019, http://www.nytimes.com/interactive/2019/climate/trump-environment-rollbacks.html.

United States, Congress, “The Migratory Bird Treaty Act.” The Migratory Bird Treaty Act, U.S. Dept. of Agriculture, 1922.

“United States: Migratory Bird Treaty Act.” The American Journal of International Law, vol. 31, no. 3, 1937, p. 142., doi:10.2307/2213728.

Wiseman, Paul. “AP FACT CHECK: Trump on New Trade Deal with Canada, Mexico.” AP NEWS, Associated Press, 1 Oct. 2018, apnews.com/160ca5a781284043beb809b39fe270a0/AP-FACT-CHECK:-Trump-on-new-trade-deal-with-Canada,-Mexico.

Yarnold, David. “If You Care About Birds, Protect the MBTA.” Audubon, 14 May 2019, http://www.audubon.org/magazine/spring-2018/if-you-care-about-birds-protect-mbta.

Memorandum 37050 from Daniel H. Jorjani, Principal Deputy Solic., to Secretary, Deputy Secretary, Assistant Sec’y for Land and Minerals Management, and Assistant Secretary for Fish and Wildlife Parks on The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 1–2 (Dec. 22, 2017).

 

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