A Free Pass to Kill Birds? Migratory Bird Treaty Act Under Threat
Proposed changes to the Migratory Bird Treaty Act, one of our nation's oldest wildlife conservation laws, threaten to undo current safeguards that protect birds from the negative impacts of energy development, including oil and gas drilling and poorly placed wind energy facilities. The result could be millions of dead birds, with no consequences for the responsible companies.
“These policy changes would effectively let industry off the hook for any harm that may be caused, including from major oil spills,” said Steve Holmer, Vice President of Policy for American Bird Conservancy.
“In a time when many migratory bird populations are experiencing significant declines, these changes would take the teeth out of the only law that protects the majority of our native birds. It's the most important legislation we have when it comes to bird conservation.”
The 100-year-old Migratory Bird Treaty Act faces twin threats. The House of Representatives is considering an amendment eliminating protection for migratory birds that fall victim to oil spills, wind turbines, and other energy infrastructure.
The language has been added to legislation called the SECURE Act, H.R. 4239. In addition, the Department of the Interior has drafted a new legal interpretation of the law, changing a long-standing policy that the Act covers these deaths.
Millions of birds are killed by preventable industrial causes each year. Hundreds of thousands are killed by wind turbines — a number that continues to grow. Millions more perish at associated power lines and towers. Tens of thousands are killed by industrial-scale solar energy. And, in the 2010 Deepwater Horizon oil spill alone, more than 1 million birds are believed to have died.
“Best management practices, like covering oil pits with screens, put little burden on industry while reducing needless deaths of birds,” said Holmer.
In practice, enforcement of the Migratory Bird Treaty Act has only occurred in a few instances when companies failed to adopt accepted industry best practices—and ignored government cautions and requests for mitigation. Only a handful of companies from across the energy sector have been prosecuted and fined, in spite of their known impacts on birds.
“Some companies have strong conservation practices in place regardless of laws requiring them,” said Holmer. “But for others, the possibility of prosecution provides incentive to do the right thing when it comes to minimizing bird deaths. Fines for oil spills such as Deepwater Horizon have done important things to rectify the environmental damage caused by energy industry accidents.”
In a remarkable show of support for keeping the MBTA strong, 17 high-ranking officials from previous Republican and Democratic administrations sent a letter to Secretary of the Interior Ryan Zinke opposing the change. "This legal opinion is contrary to the long-standing interpretation by every administration (Republican and Democrat) since at least the 1970's, who held that the Migratory Bird Treaty Act strictly prohibits the unregulated killing of birds," they wrote.
The bipartisan group of signers includes several former Deputy Secretaries of Interior and several former directors of the U.S. Fish and Wildlife Service. They agreed on the effectiveness of the MBTA. "The Migratory Bird Treaty Act can and has been successfully used to reduce gross negligence by companies that simply do not recognize the value of birds to society or the practical means to minimize harm," they wrote.
"Your new interpretation needlessly undermines a history of great progress, undermines the effectiveness of the migratory bird treaties, and diminishes U.S. leadership."
“Migratory birds are more valuable than many realize,” Holmer said.
“While we at American Bird Conservancy believe that birds have inherent value, they also are an economic driver, with bird enthusiasts spending millions of dollars on wildlife-watching equipment, backyard birding supplies, and birding tourism. Even more important, birds provide essential services necessary to people, from natural control of insect pests to pollination of our crops."