The Fish and Wildlife Service (FWS) has finalized a rule rolling back protections for migratory birds, according to a document that will be published in the Federal Register this week.
The new rule changes the implementation of the 1918 Migratory Bird Treaty Act (MBTA) so that companies are no longer penalized for accidentally or incidentally harming or killing these birds.
The MBTA has protected more than 1,000 different species of birds for more than 100 years by punishing companies whose projects cause them harm.
The Trump administration has argued, however, that companies should only be punished for intentionally killing the animals, though it has admitted that relaxing these rules may cause companies not to carry out best practices that limit incidental bird deaths.
An unpublished version of the final rule was available online on Tuesday, though the final rule will not officially come out until Thursday.
The rule follows a 2017 legal opinion from Daniel Jorjani, the now-solicitor for the Interior Department, in which he argued that applying the rule to incidental or accidental harm “hangs the sword of Damocles over a host of otherwise lawful and productive actions” and “inhibits otherwise lawful conduct.”
That opinion was struck down in court this year. U.S. District Judge Valerie Caproni wrote that the “Jorjani opinion’s interpretation runs counter to the purpose of the MBTA to protect migratory bird populations.”
However, in a statement supporting the rule on Tuesday, Interior Secretary David Bernhardt pointed to a 2015 court decision that has supported the administration’s interpretation.
“This rule simply reaffirms the original meaning and intent of the Migratory Bird Treaty Act by making it clear that the U.S. Fish and Wildlife Service will not prosecute landowners, industry and other individuals for accidentally killing a migratory bird,” he said.
The MBTA played a part in the case against BP following the 2010 Deepwater Horizon oil spill. BP pleaded guilty to charges including a violation of the MBTA.
The company paid $100 million to support wetlands reservation and conservation as part of a settlement.
According to the FWS, industry actions kill about 700 million birds each year.
An agency environmental impact statement published in November found that the rule changes would have “likely negative” effects on migratory birds.
“Fewer entities would likely implement best practices…resulting in increased bird mortality,” that assessment said.
Environmental groups and Democrats criticized the new rule on Tuesday.
“The Trump Administration’s new rule renders these safeguards absolutely toothless, and means corporations would no longer be subject to penalties under this landmark environmental law for disasters like the Deepwater Horizon oil spill,” said Sen. Chris Van Hollen (D-Md.) in a statement.
“Corporations can skirt accountability when they cause devastating disasters that wreak havoc on our ecosystems and kill massive amounts of bird life,” he added. “I am determined to work with the incoming Biden Administration to swiftly reverse this action and restore these vital conservation protections.”
At least one environmental group also threatened to sue over the rule.
“The only good news is that the courts have the power to, once again, strike down this reckless attack on one of America’s oldest and most important conservation laws,” Noah Greenwald, endangered species director at the Center for Biological Diversity, said in a statement.
The American Petroleum Institute (API), an oil and gas industry group, praised the rule in a statement.
“The modernized rule reinforces the original intent of the Migratory Bird Treaty Act,” said API Senior Policy Advisor Amy Emmert, adding that the industry “is committed to the protection of migratory birds.”
Updated: 1:50 p.m.