WASHINGTON -- The Trump administration on Tuesday finalized changes that roll back protections for migratory birds in a change pursued by the oil and gas industry, which has long sought to be shielded from liability for killing birds unintentionally in environmental disasters such as oil spills or in toxic waste ponds, wind turbines and other structures.
"This rule simply reaffirms the original meaning and intent of the Migratory Bird Treaty Act by making it clear that the U.S. Fish and Wildlife Service will not prosecute landowners, industry and other individuals for accidentally killing a migratory bird," David Bernhardt, the Interior secretary, said in a statement.
Under the measure, which changes the way the 1918 Migratory Bird Treaty Act is implemented, the federal government will no longer fine or prosecute companies whose actions cause the death of birds, as long as killing birds was not the underlying intent of the action. That holds true for accidents such as oil spills and electrocutions on power lines -- and also intentional or even illegal acts, like the spraying of a banned pesticide -- as long as birds are not the intended target of the poison.
The final rule comes less than a month before President-elect Joe Biden takes office. While Biden has not explicitly pledged to repeal the measure, his choice for interior secretary, Rep. Deb Haaland, D-N.Y., is widely expected to do so.
Repealing the measure won't be a simple or quick process, however. Conservationists and oil industry executives alike said that was what the Trump administration intended when issuing the new regulation over the objections of many scientists, who have asserted in public comments on the regulation that it would lead to many more bird deaths.
Industry leaders and administration officials said they expected businesses to continue to voluntarily protect bird habitats. Describing the policy as merely a clarification of the law, they argued that removing the threat of punishment would eliminate legal disputes about the law's intent and bring regulatory certainty to companies worried that bird deaths would make them criminally liable for millions of dollars.
Environmentalists called the decision cruel.
"It's horrendous," said Eric Glitzenstein, director of litigation at the Center for Biological Diversity, an environmental group. "It will just have a really overwhelming negative effect on our already dwindling bird populations."
The Migratory Bird Treaty Act was originally enacted to protect birds from poaching and over-hunting. It makes it illegal "by any means or in any manner" to hunt, take, capture or kill birds, nests or eggs from listed species without a permit.
Accidentally killing birds is rarely prosecuted under the law, but there have been notable exceptions, like when the Obama administration prosecuted seven oil companies in North Dakota for the deaths of 28 birds.
Sarah Greenberger, vice president of conservation at the Audubon Society, noted that the Trump administration's move came just as the organization's 121st annual bird census, known as the Audubon Christmas Bird Count, was underway. In 2019, she said, despite record participation, 6 million fewer birds were counted.