Department of Interior Weakens Migratory Bird Protections

Washington, DC—Late last week, the Department of the Interior reissued a legal opinion that weakens the Migratory Bird Treaty Act (MBTA) by no longer penalizing individuals and corporations for the incidental killing of birds protected under the law. This reinterpretation reverses a decades-long interpretation that the MBTA prohibits both intentional take and incidental killing stemming from an otherwise lawful activity.

Interior reissued this opinion in response to an executive order President Trump signed on his first day in office, directing agencies to suspend certain actions that impact energy development. This opinion was originally issued in 2017 during the first Trump administration. A federal court ruled this policy to be illegal, and it was subsequently rescinded by the Biden administration.

The 1918 MBTA protects over 1,100 species of birds and their eggs from “take” (including killing, capturing, selling, trading, and transport) without a permit. Narrowing the MBTA’s scope to prohibit only intentional—not incidental—take is a drastic change in interpretation designed to shield the oil and gas industry and electric utilities from liability for the millions of birds their activities kill each year. Birds die from colliding with these operations’ buildings and infrastructure, being electrocuted by power lines, and being poisoned by oil spills and chemical holding ponds, among other hazards. These industries will now be allowed to forego reasonable and cost-effective precautions to avoid deaths.

“The prohibition on incidental take is a critical aspect of the MBTA and has been enforced for decades to address birds’ deaths from routine industry operations, as well as major environmental disasters such as the Deepwater Horizon and Exxon Valdez oil spills,” said Johanna Hamburger, director and senior attorney of AWI’s Terrestrial Wildlife Program. “This policy removes the incentive for companies to adopt commonsense strategies to reduce threats that their operations pose to birds, and it will likely once again cause the deaths of millions of additional birds in the coming years.”

This loss of protections comes at an already perilous time for birds. A 2019 study found that there are 3 billion fewer birds in North America today compared to 1970, largely due to habitat loss, climate change, pesticides, and other human-caused factors. Birds play an important role in ecosystems, and scientists cite an urgent need to address threats to birds to prevent population collapse and the associated loss of ecosystem integrity, function, and services.

AWI consistently opposed moves to weaken the MBTA during the first Trump administration, and we will continue to do all we can to protect migratory birds from this unlawful policy change. We encourage you to take action to help birds, as well, by improving habitat, stopping window strikes, and adopting other practices around your home to protect our feathered friends.