Biden administration delays Trump rollback of migratory bird protections

The Biden administration has put a one-month delay on the Trump administration’s rollback of protections to migratory birds and is opening the rule back up for public comment. 

The Interior Department said Thursday that it would delay the effective date of the rule, which removed penalties for companies that accidentally or incidentally killed migratory birds and was slated to go into effect on Feb. 8.  

The department is working to determine what additional steps it can take and the Fish and Wildlife Service will give the public 20 days to comment on the rule to allow for “additional engagement.” The Biden administration also expects “further opportunities to engage” on the rule. 

Interior Department spokesperson Melissa Schwartz said in a statement Thursday that the Trump administration’s action “sought to overturn decades of bipartisan and international precedent in order to protect corporate polluters.”

“At President Biden’s direction, Interior is delaying and reviewing the Trump administration’s rollback of the MBTA to ensure continued progress toward common-sense standards that protect wildlife and their habitats,” Schwartz said, referring to the Migratory Bird Treaty Act. 

The Trump administration had argued that it was unfair to punish companies when they accidentally caused bird deaths, including in a 2017 legal opinion that stated 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 last year. U.S. District Judge Valerie Caproni wrote that the “opinion’s interpretation runs counter to the purpose of the MBTA to protect migratory bird populations.”

In a statement supporting the rule, then-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 in a statement when it was finalized. 

In an assessment of the rule‘s environmental impacts, the department last year acknowledged that relaxing the protections may cause companies not to carry out best practices that limit incidental bird deaths.

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.

It played a part in the case against BP following the 2010 Deepwater Horizon oil spill. 

The company pleaded guilty to charges including a violation of the MBTA and ended up paying $100 million to support wetlands preservation and conservation as part of a settlement. 

The decision to pause the rule comes after the White House issued a memo freezing pending regulations that had not gone into effect. 

The White House also separately identified the migratory bird rule as one of dozens of Trump administration environmental rules that it would seek to review.