Next Steps Announced in Process to Reinstate and Strengthen Migratory Bird Treaty Act

WASHINGTON – “Today’s announcement sends an important signal that the administration will move to reinstate protections for migratory birds,” said Sarah Greenberger, senior vice president for conservation policy, National Audubon Society. “The moves announced by the Department of the Interior create a critical opportunity to strengthen the century-old law for the future. 

The Department of the Interior announced today that it will rescind the “M-Opinion” and legal directive implemented by the Trump administration which a federal court struck down last year. The administration also announced that while the final rule gutting critical MBTA protections goes into effect today, it will soon announce a new rulemaking process that could reinstate and strengthen those important provisions of the law.

“The approval of the important Vineyard Wind project off the coast of Massachusetts today, emphasizes the importance of stakeholders working together to design a modernized MBTA that will protect birds and help facilitate the clean energy revolution birds and people need to survive,” said Greenberger. “As advocates for birds and the ecosystems they need, Audubon supports the deployment of wind turbines and solar panels to address climate change, and laws like the MBTA serve as an incentive and backstop to ensure we protect nature while protecting the world’s future.”

The change by the Trump administration centered on the enforcement of “incidental take.” It attempted to limit the MBTA’s protection only to activities that purposefully kill birds, exempting all industrial hazards from enforcement. Any “incidental” death—no matter how inevitable, avoidable or devastating to birds—became immune from enforcement under the law. If this change had been in place in 2010, BP would have faced no consequences under the MBTA for the more than one million birds killed in the Deepwater Horizon oil spill.

“We hope to see the administration use this new rulemaking process to add a reasonable permitting process to manage incidental take,” said Greenberger. “A permitting program is a common-sense approach to clarifying these longstanding protections and providing the certainty industry wants.”

New science has revealed the loss of 3 billion birds in North America since 1970 and that two-thirds of those birds are at risk of extinction due to climate change. In light of these alarming reports, the National Audubon Society is advocating for a multi-front approach to reinstate the longstanding and common sense interpretation of this foundational law.

“While it is disappointing that the Trump administration moved to finalize this unlawful rule, we’re confident that the Biden administration’s actions and the several other efforts underway will bring these protections back,” said Greenberger. “Birds are telling us they are in trouble and we are running out of time to act.”

The National Audubon Society and several other conservation organizations filed a federal lawsuit in January in the Southern District of New York challenging the Trump administration’s final rule and we will continue to pursue that challenge in an effort to void the illegal final rule. In August of 2020, in response to a previous lawsuit filed by Audubon, other organizations, and states, the Southern District ruled that the administration’s 2017 Solicitor’s Opinion did not align with the intent and language of the 100-year-old law, and overturned the policy.

“This lawsuit is necessary to challenge a plainly illegal policy and pursuing it could help shorten the amount of time the final rule is in place,” said Greenberger. “We also hope to see Congress pass the Migratory Bird Protection Act to clarify these longstanding protections and authorize this common-sense approach.”

The Migratory Bird Protection Act was passed out of the House Natural Resources Committee in the 116th Congress and had a bipartisan group of more than 90 co-sponsors. The bill would secure protections for birds and direct the Fish and Wildlife Service (FWS) to develop a permitting process for “incidental take” through which relevant businesses would implement best management practices and document compliance, further driving innovation in how to best prevent bird deaths. It would need to be reintroduced in this Congress in order to be considered again.

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The National Audubon Society protects birds and the places they need, today and tomorrow. Audubon works throughout the Americas using science, advocacy, education, and on-the-ground conservation. State programs, nature centers, chapters, and partners give Audubon an unparalleled wingspan that reaches millions of people each year to inform, inspire, and unite diverse communities in conservation action. A nonprofit conservation organization since 1905, Audubon believes in a world in which people and wildlife thrive. Learn more at www.audubon.org and on Facebook, Twitter and Instagram @audubonsociety.

Media Contact: Matt Smelser matt.smelser@audubon.org