Preventable Birds Deaths are No Longer Punishable Offenses

One of the nation’s foundational conservation laws, the Migratory Bird Treaty Act of 1918 (MBTA), faces yet another threat from the federal government. Last week, the U.S. Fish and Wildlife Service announced a proposed rule that eliminates the MBTA’s prohibition on the killing or "taking" of migratory birds from industrial activities, such as birds flying into uncovered oil pits, hitting power lines, or other predictable and avoidable killing. These kinds of deaths are known as “incidental take,” and the new proposed rule would double down on its reinterpretation of the law to no longer make it illegal for industries to kill birds in this way.

This attack on bird protections comes at a time when birds are in serious trouble. Bird populations are facing a crisis. According to the National Audubon Society’s recent climate report, two-thirds of the continent’s birds are threatened by climate change.

In addition to explicitly protecting more than 1,000 species, the MBTA provides a critical incentive for industries, whose activities may pose a hazard to birds, to take actions that reduce those risks. If this policy were in effect after the Deepwater Horizon oil spill, BP would have been off the hook for one million bird deaths and its $100 million fine to help birds recover from the spill.

Despite the law’s effectiveness, as well as widespread support from thousands of Audubon members, former conservation leaders, U.S. senators and representatives, and more than 500 wildlife and environmental non-governmental organizations, the Trump Administration continues to cripple America’s most important bird law. Amidst these rollbacks, Audubon has been working at the state and federal level, as well as in court, to defend vital protections for birds.

In 2018, we filed a federal lawsuit along with the American Bird Conservatory, National Resources Defense Council, Defenders of Wildlife and the Center for Biological Diversity to defend the MBTA. Our lawsuit was later joined by one filed by eight state attorneys general. And in September 2019, California Governor Gavin Newsom signed AB 454 , an Audubon-sponsored bill that strengthens the state’s protections for migratory birds and closes loopholes in existing regulations where California law defers to federal law. At the federal level, the House Natural Resources Committee approved the Migratory Protection Act (MBPA) earlier this year. This legislation, which was introduced with both Republican and Democrat co-sponsors, buttresses the Migratory Bird Treaty Act and accelerates action to save birds from industrial deaths. 

Protecting birds is wildly popular, and for more than 100 years the MBTA has been a bipartisan means to accomplish that. While the current administration continues its assaults and vows to make its positions permanent, the decision is flouting the wills of millions of Americans.

Do not let this new ruling be the final outcome for the MBTA. Grassroots power made the Migratory Bird Treaty Act possible more than a century ago, and grassroots power can ensure that the nation’s bedrock bird-protection law will be preserved and strengthened for the next century. If you care about birds, take action now by submitting a public comment to oppose the proposed rulemaking.