Undermining protection for migratory birds

A growing number of reports have revealed close ties between industry lobbyists and the Trump administration, with one source indicating that almost 200 lobbyists have been hired to work on issues closely related to the interests of former clients. The two seem to be “birds of a feather,” which is ironic given that birds are a group now threatened by their connections. 

In December, Daniel H. Jorjani, the principal deputy solicitor at the U.S. Department of the Interior and former advisor to the industry-steeped Koch brothers, issued a 41-page memorandum that reinterpreted the Migratory Bird Treaty Act. The act one of our nation’s earliest and most impactful conservation laws. The MBTA protects over 1,100 migratory bird species by making it illegal to “take” birds (i.e., pursue, hunt, take, capture, kill or sell live or dead birds, feathers, eggs and nests) except by permit or regulated hunting. Since enacted, MBTA has consistently included “incidental take,” or activities that directly and foreseeably, but not purposefully, harm birds.

{mosads}Unlike past administrations of Republicans and Democrats alike, Jorjani concluded that MBTA applies only to “affirmative actions that have as the purpose the taking or killing of migratory birds, their nests or their eggs.” That reinterpretation fundamentally weakens the protection granted to birds, and contrasts sharply with the previous opinion that included incidental take. In response, a bipartisan group — of 17 former Interior officials representing the Nixon, Ford, Carter, Reagan, both Bushes, Clinton and Obama administrations — sent a memo expressing deep concern about the “ill-conceived opinion.”

Part of the rationale underlying Jorjani’s argument is that incidental take creates “unlimited potential for criminal prosecutions.” For example, estimates of avian mortality sources indicate that around 2 billion birds are killed by cats each year, and over 200 million are killed by collisions with vehicles. Does that mean that cat owners could be prosecuted if their cat killed or injured a migratory bird? What about someone who inadvertently hits a migratory bird while driving a car? 

To be sure, criminalizing truly accidental take would be a problem, but the MBTA is not used this way. Instead, the MBTA is applied to matters of gross negligence, usually by industries or corporations, where the potential harm to birds should have been expected and proactively addressed.

The U.S. Fish and Wildlife Service estimates that over 40 million birds are killed annually by industry actions or structures, such as electrical powerlines, oil pits, communications towers, and wind turbines. Think back to the Deepwater Horizon oil spill that killed more than 1 million birds in a single event.

Yet, MBTA is seldom used in a punitive fashion. Rather, the government engages with industries in good faith to identify solutions that balance economic and environmental needs. In their memo, former Interior officials described how the act is overwhelmingly used as a strong incentive for companies to anticipate, avoid, and mitigate foreseeable death or injury to birds. The outcomes can be striking. Bird mortality at oil pits dropped from an estimated 2 million per year to hundreds of thousands after industries took measures to protect birds, including the installation of nets above pits.

Though true that industries and corporations often want to implement practices that reduce harm to birds, their lobbyists and representatives put MBTA in the crosshairs in the months before Jorjani’s legal opinion. The Center for Investigative Reporting and Reveal showed that at least 20 different industry groups and companies — including the Western Energy Alliance, the National Ocean Industries Association, and the Interstate Natural Gas Association of America — lobbied government officials about the MBTA last year.

Jorjani also met or communicated with industry lobbyists, lawyers, trade groups, or officials over 20 times in the months leading up to the decision — dwarfing those with conservation groups, according to an article in Pacific Standard. On the same day the new legal opinion was issued, both the Independent Petroleum Association of America and Western Energy Alliance publicly applauded the decision, asserting that they already take the necessary actions to protect birds and are committed to environmental conservation. Many do, but the obvious counterpoint is that companies already protecting birds wouldn’t be at risk of violating the act in the first place.

In the end, weakening the MBTA serves only a few special interests and comes at great cost to broader society. Healthy populations of birds are hallmarks of a healthy environment, which is something that we need as much as birds do. The reinterpretation of the MBTA undermines those public goods for private profits.

Amanda D. Rodewald is the Garvin professor of ornithology and director of conservation science at the Cornell Lab of Ornithology and in the Department of Natural Resources at Cornell University.

John Fitzpatrick is the Louis Agassiz Fuertes professor and director of the Cornell Lab of Ornithology and in the Department of Ecology and Evolutionary Biology.

Both are faculty fellows at Cornell University’s Atkinson Center for a Sustainable Future. Views expressed are theirs alone and do not represent those of these institutions.