Migratory bird protections to be permanently restored by Biden administration

By: - May 10, 2021 8:49 am

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The Interior Department plans to officially revoke a Trump-era rule that loosened enforcement of a longstanding law to protect migratory birds, the department said Thursday.

The rule put in place by former Interior Secretary David Bernhardt barred government authorities from holding companies liable for environmental violations leading to the deaths of birds protected under the century-old Migratory Bird Treaty Act unless the companies intentionally did so. Some 1,100 bird species are protected.

President Joe Biden’s administration said Thursday it would revoke the rule, which Bernhardt approved on Jan. 7, just weeks before President Donald Trump left office. The rule effectively gutted the migratory bird law, known as the MBTA, that had been used to prosecute polluters, including BP during the Deepwater Horizon spill off the coast of Louisiana in 2009.

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“The rule does not reflect the best reading of the MBTA’s text, purpose, and history,” an Interior notice to be published Friday says.

“The rule’s reading of the MBTA also raises serious concerns with a United States’ treaty partner, and for the migratory bird resources protected by the MBTA and underlying treaties. Accordingly, we are proposing to revoke the January 7 rule.”

The rule was initially set to take effect Feb. 8. In the first weeks of his presidency, Biden’s Interior Department extended the start date to March 8 while officials indicated they planned to revoke the rule permanently.

The Trump rule was based on a 2017 legal opinion from then-Interior Solicitor Daniel Jorjani that held the department couldn’t enforce the law unless the bird deaths were intentional. A federal judge later struck down that interpretation and the Biden administration said in March it was no longer the department’s policy.

“The Migratory Bird Treaty Act is a bedrock environmental law that is critical to protecting migratory birds and restoring declining bird populations,” Interior Secretary Deb Haaland said in a release. “Today’s actions will serve to better align Interior with its mission and ensure that our decisions are guided by the best-available science.”

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