More Threats (and a little hope) for the Migratory Bird Treaty Act

By John McFerrin

            The April, 2020, issue of The Highlands Voice included a story about threats to the Migratory Bird Treaty Act.  Those threats continue to grind ahead, putting the effectiveness of the Act in serious jeopardy.  In the midst of the gloom, there is some hope that Congress will step in and save the Act.


            For a century, the Migratory Bird Treaty Act has been one of the main protections for birds of all kind.  Historically, it has protected birds from intentional killing, situations in which someone had the killing of a bird as their goal.  That was once an important part of the Act’s work; at the time it was passed birds such as the Snowy Egret were being hunted to extinction for their feathers.

In addition to protecting birds from intentional killing, the Act also protected birds when someone’s actions or inactions resulted in their deaths or harm.  The most visible recent example of this is the Deepwater Horizon oil spill.  The company did not set out with the intention of killing birds.  It just conducted its operation in a way that killed over one million birds.  As a result of the Migratory Bird Treaty Act it had to pay over $64 million in penalties. 

That was then; this is now.  In 2017, the United States Fish and Wildlife Service (a part of the United States Department of the Interior) decided that it and all its predecessors for the past century had been misinterpreting the Act.  It issued an opinion saying that the Migratory Bird Treaty Act only prohibited intentional killing of birds in situations where the goal of the activity was killing birds.  When the goal was something else and the birds just happened to be killed in the process, the Act did not prohibit that.

Opinions don’t last; regulations do.  The 2017 Opinion would guide the enforcement of the Act only so long as the current administration was in charge.  A different administration could issue a new opinion, saying that the Act had been correctly interpreted all along and that both intentional and incidental killing were prohibited.  To make the policy permanent, it needs to be in a regulation which would be difficult to change.

We are now in the midst of the process of promulgating the regulation.  The Fish and Wildlife Service has issued a draft regulation and received public comments on it.

What’s happening now

            The National Environmental Policy Act requires that the Department consider the environmental impact of its major actions, including the proposed regulation.  It has prepared a draft Environmental Impact Statement, evaluating the impact of its proposed regulation on the environment.  

The draft is now available for public comment.  As designed, making the draft available for public comment makes it possible for the public to point out things the Department of the Interior overlooked, places where the analysis was faulty, etc.  The Department could then use the suggestions to improve the product and, in turn, have its decision making guided by the improved Environment Impact Statement.

In practice, commenters may well get the standard, government issue, thank-you-for-your-participation, we-are-going-to-do-what-we-always-wanted-to-do response.

In the draft Environmental Impact Statement for this Migratory Bird Treaty Act regulation, the Department of the Interior considers three alternatives.  One alternative is doing nothing.  Although this alternative is nominally considered in every Environmental Impact Statement, it is almost never, if ever, picked.  If agencies wanted to do nothing, they would have done nothing.  They don’t do rulemaking just to end up doing nothing.

This leaves two choices: (1) implement a regulation making clear that the Migratory Bird Treaty Act protects all migratory birds from both intentionally killing and killing which is incidental to some other activity not specifically designed to kill birds (the historical interpretation of the Act); and (2) implement a regulation saying that the Act only protects birds from intentional killing where the killing is the goal of the activity (the 2017 interpretation of the Act).

In evaluating the effects of these two choices, the Fish and Wildlife Service concluded that choosing the second one would result in “increased bird mortality.”  This would happen because “fewer entities would likely implement best practices.”  Choosing the first one would, on the other hand, result in more entities who would “likely implement best practices to avoid the threat of enforcement.”  The draft Environmental Impact Statement predicts a “decrease in bird mortality compared” under this alternative.

The term “best practices” (the ones that would decrease under the Fish and Wildlife Service’s proposal) is a general term that covers a variety of practices that industries have developed over the years to protect birds.  For example, communication towers have been shown to reduce mortality by about 70 percent by changing to flashing lights and removing guy wires. For oil pits, bird mortality can be virtually eliminated if netting is installed and maintained.  These, and many others for many industries, are the kind of practices which the regulation proposed by the Fish and Wildlife Service would diminish.

The draft EIS also predicts some secondary environmental benefits from steps that reduce bird mortality.  Actions that protect birds can also benefit entire ecosystems.

The draft EIS also concludes that the change that the Fish and Wildlife Service wants to make would result in lower costs to industry.

A little bit of hope

            There is a bill pending in Congress (H.R. 5552: Migratory Bird Protection Act of 2020) which would undo the activities of the Fish and Wildlife Service that diminished the Migratory Bird Treaty Act.  It would make clear that the Act prohibits not just purposeful actions to kill birds.  It would prohibit actions in which the bird deaths result incidentally from other activities which do not have killing birds as their primary goal.  It would, in other words, restore the historic interpretation of the Act.

            While Congressional interest in guiding the Fish and Wildlife Service back to its past is encouraging, this is only a “little” bit of good news because the bill faces an uphill climb.  It has 77 co-sponsors (none from West Virginia); there is no corresponding legislation moving through the Senate.  It was introduced in January, 2020, and has been assigned to a committee but the committee has taken no action.