Biden Administration Says it Will Revoke Trump Rule that Let Companies Kill Birds

Wildlife advocates cheered the Biden administration’s announcement today that it will scrap a Trump-era rule that prevents the federal government from penalizing companies under the Migratory Bird Treaty Act (MBTA) for the unintended but preventable killing of birds. 

Trump’s rule went into effect today after the Department of the Interior delayed its start date by a month, but it won’t be in force for long. The department said that it will soon issue a new proposed rule to replace the Trump policy, which Biden targeted for reversal on his first day in office. Interior also said it has rescinded a controversial memo that formed the legal underpinning for the rule. 

That legal memo, issued in 2017 by the department’s former top lawyer, “overturn​ed decades of bipartisan and international consensus and allowed industry to kill birds with impunity,” said Interior spokesman Tyler Cherry today in an emailed statement. As part of its rule rewrite, Cherry added, the department “will also reconsider its interpretation of the MBTA to develop common sense standards that can protect migratory birds and provide certainty to industry.” 

Conservation groups saw the announcement as an important step toward restoring the MBTA as a key safeguard for the roughly 1,100 bird species it covers. “This is a moment to be hopeful for the future of the MBTA and the birds it protects,” says Erik Schneider, policy manager for the National Audubon Society. After early moves to beef up bird protections, Schneider says, “this is the strongest signal the Biden administration has sent yet.”

The announcement “gives us all hope for the future of strong, upheld bird legislation,” said Jordan Rutter, director of public relations for the American Bird Conservancy, in an email. “In the meantime, birds definitely had a win today.”

The MBTA, passed in 1918, makes it illegal to pursue, hunt, shoot, wound, kill, trap, capture, or collect migratory birds or their eggs or nests—or attempt to do so—without a permit. For decades, administrations representing both major political parties interpreted the law to include “incidental take,” the accidental but predictable bird deaths often caused by industrial hazards such as uncovered oil waste pits. Most notably, that longstanding reading of the MBTA allowed the federal government to penalize BP $100 million for killing around 1 million birds in the 2010 Gulf oil spill. The Trump rule, however, asserted that the law only covers intentional killing—an interpretation that oil companies had lobbied for.

Audubon and other groups, along with several states, have fought the rule in court. Those lawsuits prompted a judge’s ruling this past August that the Trump position was “simply an unpersuasive interpretation of the MBTA’s unambiguous prohibition on killing protected birds.” That blow to the rule’s legal foundation did not stop the previous administration from moving ahead with the rulemaking process.

The rule—finalized just two weeks before Inauguration Day—was among more than 100 Trump policies that President Biden ordered agencies to review on his first day in office. Then, on February 5, Interior pushed the Trump rule’s effective date back a month and opened a new comment period to gather public input on the future of the MBTA.

Among the responses was a March 1 letter from a group of 252 conservation groups to the U.S. Fish and Wildlife Service—the agency within Interior that oversees the MBTA—calling for restored protections under the act. The Association of Fish and Wildlife Agencies, which represents fish and game departments around the country and in Canada, called on the administration to make it clear that the law prohibits incidental take. Tribal governments also wrote to support strengthening the MBTA, including the Quinault Indian Nation, which said the only response to its November request for formal consultation on the MBTA was “an informal offer” on January 6 to meet with now former Interior Secretary David Bernhardt, then in his last days in office. 

In his reference to providing industry with certainty, Cherry, the Interior spokesman, appeared to open the door to something many conservation advocates have long championed: a permitting program that would protect companies from legal action for incidental take as long as they adopt practices and technology shown to prevent most bird deaths. Advocates hope that Congress will once again take up a bill introduced last year as the Migratory Bird Protection Act, which would direct the department to set up such a permit system, and would affirm that the MBTA outlaws incidental take. 

Whether Interior will create an incidental take permit program or what it might look like is unclear as the department focuses on its replacement for the previous administration’s rule. What is increasingly clear, however, is that the Trump-era policy of letting birds fend for themselves is a thing of the past.