Court tosses out Trump Interior’s gutting of century-old protections for migratory birds

  • Published on August 13th, 2020

Conservation advocates and critics of the Trump administration’s subservience to corporate polluters celebrated a federal court’s Tuesday decision throwing out a December 2017 Interior Department opinion that effectively gutted nationwide protections for migratory birds by letting industry off the hook for “incidental” killings.

Trump's interior Department tries to gut protection for migratory birds. court says no
(Image CC by Dr. Georg Wietschorke from Pixabay )

By Jessica Corbett
Common Dreams

“Like the clear crisp notes of the wood thrush, today’s court decision cuts through all the noise and confusion to unequivocally uphold the most effective bird conservation law on the books,” Sarah Greenberger, interim chief conservation officer for the National Audubon Society, said in a statement.

Noah Greenwald, endangered species director at the Center for Biological Diversity, declared that the Trump administration’s policy on the Migratory Bird Treaty Act of 1918 (MBTA) “was nothing more than a cruel, bird-killing gift to polluters and we’re elated it has been vacated.”

“The Migratory Bird Treaty Act is one of our nation’s most important environmental laws, and has spurred industry innovation to protect birds, such as screening off toxic waste pits and marking power lines to reduce collisions,” responded Mike Parr, president of American Bird Conservancy. “This decision represents the next vital step on the path to restoring our nation’s declining bird populations and is a major victory for birds and the environment.”

Judge Valerie Caproni of the Southern District of New York issued (pdf) the decision invalidating the administration’s MBTA interpretation (pdf), which was authored by Daniel Jorjani, a former Koch brothers adviser who is now the Interior solicitor, the department’s chief attorney.

Referencing Harper Lee’s classic novel, Caproni wrote on page one of her decision:

It is not only a sin to kill a mockingbird, it is also a crime. That has been the letter of the law for the past century. But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.

“There is nothing in the text of the MBTA that suggests that in order to fall within its prohibition, activity must be directed specifically at birds,” the judge continued. “Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only ‘some’ kills are prohibited.”

Jorjani’s interpretation of the law, Caproni concluded, “runs counter to the purpose of the MBTA to protect migratory bird populations” and “is simply an unpersuasive interpretation of the MBTA’s unambiguous prohibition on killing protected birds.”

Since Jorjani authored the opinion, green groups and conservationists have repeatedly called out the Trump administration and the Interior Department specifically for attacking the MBTA in response to lobbying from corporate interests—particularly Big Oil companies, “the greatest beneficiaries of the new interpretation.”

After the U.S. Fish and Wildlife Service, an Interior agency, announced in January that it was finalizing a rollback of the MBTA, Alan Zibel, research director for Public Citizen’s Corporate Presidency Project, charged that “this particular giveaway is a direct request of a former client of Interior Secretary David Bernhardt and proves once again that the Trump administration is intent on attacking conservation laws in every way possible.”

The Natural Resources Defense Council (NRDC) on Tuesday detailed the impact of the administration’s now-invalidated interpretation:

Had the Trump administration’s policy been in place at the time of the Deepwater Horizon oil spill in 2010, for example, British Petroleum would have avoided paying more than $100 million in fines to support wetland and migratory bird conservation to compensate for more than a million birds the accident was estimated to have killed.

Since the Jorjani opinion, snowy owls and other raptors have been electrocuted by perching on uninsulated power lines in Delaware, Maryland, Tennessee and North Dakota—with no consequences for the responsible utilities. Oil spills in Massachusetts, Idaho, and Washington, all of which caused the subsequent deaths of many birds, did not prompt any penalties. Landscapers in San Diego were reported to have thrown live mourning dove chicks into a tree shredder, prompting a U.S. Fish and Wildlife Services agent to go undercover to investigate. But the case was closed with no action taken due to the changed policy.

Caproni’s ruling, said NRDC senior attorney Katie Umekubo, “confirms that Interior’s utter failure to uphold the conservation mandate of the U.S. Fish and Wildlife Service simply cannot stand up in a court of law.”

Greenberger of the National Audubon Society explained that this “huge victory for birds” and their defenders “comes at a critical time,” because “science tells us that we’ve lost three billion birds in less than a human lifetime and that two-thirds of North American birds are at risk of extinction due to climate change.”

Jamie Rappaport Clark, president and CEO of Defenders of Wildlife, also welcomed the court’s decision as “a ringing victory” for both birds and conservationists.

“The Department of the Interior’s wrong-head reinterpretation would have left the fate of more than 1,000 species of birds in the hands of industry,” she said. “At a time when our nation’s migratory birds are under escalating threats, we should be creating a reasonable permit program to ensure effective conservation and compliance, rather than stripping needed protections for birds.”

About the Author

Jessica Corbett is a staff writer for Common Dreams.

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