In Wake of Weakened Rules, Migratory Bird Protection Act Offers Hope

World Migratory Bird Day provides an opportunity to reflect on the wonder of bird migration and consider the groundbreaking conservation laws that have protected migratory birds for decades. One of the most important of these, the Migratory Bird Treaty Act, has been significantly undermined by recent actions of the federal government. Proposed legislation in Congress, however, could help restore essential protections. 

In late January, the federal government proposed a new regulation that will weaken the 101-year-old Migratory Bird Treaty Act (MBTA), a landmark law that has protected and helped to restore and maintain populations of many bird species, from loons to songbirds. The proposed rulemaking by the Department of the Interior seeks to codify a 2017 legal opinion that has ended all enforcement against the predictable and preventable killing of migratory birds from commercial activities.

“This rulemaking is another setback for birds cherished by millions of Americans at a time when many migratory birds are undergoing precipitous declines,” says Steve Holmer, ABC's Vice President of Policy. “We urge all citizens to speak out against this harmful policy change and ask that the law be strengthened to reverse the decline of migratory bird populations.”

The Hooded Warbler is one of approximately 800 migratory bird species regularly found in the United States. Photo by Ray Henessy/Shutterstock

The Hooded Warbler is one of more than 1,000 bird species that have long been protected by the Migratory Bird Treaty Act (MBTA). Photo by Ray Hennessy/Shutterstock

The Act's prohibition on the killing or "taking" of migratory birds has long been understood to extend to “incidental take” — meaning unintentional but predictable killing of birds from hazards such as open oil pits, tall towers, and powerlines.

The risk of liability under the MBTA long provided the energy sector — including the oil and gas industry, wind energy development companies, and transmission line operators — with an incentive to work with the U.S. Fish and Wildlife Service to minimize bird deaths. But the Administration's new policy eliminates this incentive to minimize and mitigate impacts of industries' activities on migratory birds.

Scarlet Tanagers and other migratory birds face increased threats from changes to the implementation and enforcement of the Migratory Bird Treaty Act. Photo by Liam Goodner/Shutterstock

Scarlet Tanagers and other migratory birds face increased threats from changes to the enforcement of the MBTA. Photo by Liam Goodner/Shutterstock

This problem would be resolved by the Migratory Bird Protection Act (H.R. 5552). Introduced by Rep. Alan Lowenthal in January and supported by 62 bipartisan co-sponsors, the legislation creates a migratory bird incidental take permitting system. Obtaining a permit would require a company to adhere to best management practices; if accidental bird deaths occurred, the permit-holder would be protected from liability. In this way, the permitting system would provide industry with greater certainty and a level playing field requiring that the same conservation standards be met by all players.

“The Migratory Bird Protection Act provides an excellent framework to start preventing bird mortality by applying best management practices and steps to mitigate inevitable impacts,” says Holmer. “Given the efforts to further weaken the Migratory Bird Treaty Act, the need for this new legislation becomes even more critical.” Meanwhile, ABC and partners are engaged in legal action to oppose weakening the original MBTA.

Act to Help Migratory Birds

Defending wild birds is an enormous undertaking, and we need your help. Please join us by asking Congress to pass the Migratory Bird Protection Act. Your voice is critical to ensuring that America maintains its commitment to protecting migratory birds.