On April 11, a legal opinion issued by the Department of the Interior concluded that the Migratory Bird Treaty Act (MBTA) does not apply to the incidental, yet predictable and preventable killing of migratory birds. Under the new opinion, energy and utility companies will no longer be held liable for bird mortalities from industry hazards such as open oil waste pits, tall communication towers, and powerlines. Hence, they no longer have any incentive to try to protect birds at their facilities. 

“This opinion is a setback for wild birds that are cherished by millions of Americans at a time when many migratory bird species are undergoing serious declines,” said Michael J. Parr, President of American Bird Conservancy. “The MBTA is one of our nation's most important environmental laws and has spurred industry innovation to protect birds, such as screening off toxic waste pits and marking powerlines to reduce collisions.”

Each year, around one billion birds are lost to industrial activity. Over its century-long history, the MBTA has protected millions, if not billions, of birds by prohibiting the sale, possession, and killing of migratory birds without a permit — including through incidental take, defined as the foreseeable and predictable killing of birds from industrial sources. 

In 2017, a legal opinion and a subsequent rule eliminated industry responsibility for incidental take. The rule was then rescinded in 2021, with a new rulemaking process launched that year to establish a permitting program for incidental take.

This permitting process was intended to advance bird conservation by expanding the use of beneficial practices that avoid, minimize, and compensate for impacts to birds resulting from industrial activity. A permitting system would also provide industry with increased certainty without substantial administrative burden and establish clear, consistent guidelines for meeting legal obligations under the MBTA. The recent rollback would exempt industries from such responsibilities.

“The oil and gas industry, wind energy development companies, and transmission line operators have successfully worked with the U.S. Fish and Wildlife Service to devise smart ways to minimize bird deaths,” said Parr. “These practices can be used to minimize and mitigate impacts on migratory birds. Ultimately, we believe that a permitting system with mitigation and compensation is the best solution.” 

“There have been very few prosecutions in the past [for failures to comply with the MBTA], and the prosecutions that have happened have been after multiple warnings. But, the Act has worked as an incentive for better practices, and thanks to the Act, huge advances have been made to protect birds,” he added.   

The move to weaken the Act comes as bird populations have plummeted by the billions since 1970, according to the 2025 State of the Birds report.

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American Bird Conservancy (ABC) takes bold action to conserve wild birds and their habitats throughout the Americas. Inspired by the wonder of birds, we achieve lasting results for the bird species most in need while also benefiting human communities, biodiversity, and the planet's fragile climate. Our every action is underpinned by science, strengthened by partnerships, and rooted in the belief that diverse perspectives yield stronger results. Founded as a nonprofit organization in 1994, ABC remains committed to safeguarding birds for generations to come. Join us! Together, we can do more to ensure birds thrive.

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