By Elizabeth Shogren, who writes High Country News’s D.C. Dispatches from Washington. Originally published by High Country News and reproduced at Grist as part of the Climate Desk collaboration.
The Trump administration’s environmental rollbacks have sparked a lot of outrage. But one recent action by the Interior Department drew unprecedented protest from a bipartisan group of top officials who go all the way back to the Nixon administration: a new legal opinion that attempts to legalize the unintentional killing of most migratory birds.
Under the new interpretation, the Migratory Bird Treaty Act forbids only intentional killing — such as hunting or killing birds to get their feathers — without a permit. The administration will no longer apply the act to industries that inadvertently kill a lot of birds through oil drilling, wind power, and communications towers. Critics fear that these industries might now end the bird-friendly practices that save large numbers of birds.
An American coot on an oil-covered evaporation pond at an oilfield wastewater disposal facility. An estimated 500,000 to 1,000,000 migratory birds die each year in oilfield wastewater pits.
A letter sent by 17 former wildlife officials on Jan. 10 urges Interior Secretary Ryan Zinke to suspend the “ill-conceived” opinion, saying it makes it nearly impossible to enforce a 100-year-old law protecting migratory birds. The former officials’ message is clear: The Trump team’s assault on environmental regulations is not just the normal pendulum swing between Democratic and Republican administrations. Rather, Trump’s rollbacks are attacking fundamental principles of conservation supported by both Republican and Democratic administrations for many decades.
The 1918 Migratory Bird Treaty Act makes it illegal to kill birds without permission, though hunters can obtain permits. For decades, the threat of prosecution gave industries that unintentionally kill a lot of birds an incentive to collaborate with the federal government on minimizing bird deaths. For instance, hundreds of thousands of birds die each year from getting poisoned or trapped in the toxic muck of drilling companies’ wastewater pits. To remedy this, oil and gas companies can store the waste in closed tanks or put nets over their pits to limit the number of deaths.
In other industries, fishing boats that drag long lines with baited hooks accidentally drown albatross, petrel and other seabirds. After working with the U.S. Fish and Wildlife Service, fishing companies started attaching weights to their lines so they descend more quickly into the water. At communications towers, neotropical songbirds, especially warblers, are attracted to the steady red lights that warn pilots, and as a result, millions are killed each year. So the industry, working with several government agencies, figured out that flashing lights — which don’t attract birds — are just as good at preventing airplane collisions. It’s a cheap fix, because the towers already have strobe lights; they just have to turn off the steady ones.
Companies that refused to cooperate risked criminal prosecution. Duke Energy and PacifiCorp Energy were both prosecuted during the Obama administration for failing to take steps to protect birds at their Wyoming wind farms, despite the U.S. Fish and Wildlife Service’s efforts to get them to do so.
Under the Trump administration’s new interpretation, however, companies would no longer be prosecuted for failing to protect birds. The new opinion was written by Interior’s principal deputy solicitor, Daniel Jorjani, a Trump appointee who came to Interior from Freedom Partners, a political organization largely funded by the Koch brothers, fossil-fuel billionaires with an anti-regulatory agenda who are major players in elections around the country. Freedom Partners’ board of directors is made up of Koch executives.
The opinion was issued just before Christmas, along with other anti-environmental actions. Brad Bortner, who was Fish and Wildlife’s chief of migratory bird management until the end of December, says he and his staff were not consulted or even given a heads-up. Paul Schmidt, a top official in the migratory bird program under both Presidents Bill Clinton and George W. Bush, became the “spark plug” for the opposition to the new policy. He contacted his counterparts in other administrations as well as higher-ranking officials who served presidents from both parties. “One hundred percent all agreed immediately that was a bad interpretation,” Schmidt says. They waited for Bortner’s retirement to be official so he could sign their protest letter, and then they sent it to Zinke.
All but one of the agency’s directors since 1973 signed the protest, as did top Interior officials from the administrations of George W. Bush, Bill Clinton, George H.W. Bush, Jimmy Carter, Gerald Ford, and Richard Nixon. “People were aghast at this announcement,” says Dan Ashe, former president Barack Obama’s Fish and Wildlife Service director. “It’s a complete giveaway, principally to the energy industry, but to industry writ large, at the expense of a resource that is precious and vulnerable.”
“This legal opinion is contrary to the long-standing interpretation by every administration (Republican and Democrat) since at least the 1970s, who held that the Migratory Bird Treaty Act strictly prohibits the unregulated killing of birds,” the letter states.
The former officials’ protest underscores that the resistance to the Trump administration’s assault on environmental protections is broadening. Former Republican Environmental Protection Agency administrators already had joined the chorus of Democrats, environmental groups, and hunting and fishing groups decrying the Trump administration’s pro-industry agenda. But the Migratory Bird Treaty Act letter marked the first time such a broad group of former Interior Department officials had signed on to such a protest. Zinke has not yet responded.
Lynn Scarlett, who was deputy Interior secretary and acting Interior secretary under George W. Bush, says the old interpretation of the law protected birds without being too onerous for industries. Companies were prosecuted only after ignoring repeated warnings. “The act and the way it has been implemented for many years has made people come to the table and think about important actions to protect birds,” says Scarlett, now managing director of The Nature Conservancy. “Narrowing that is going to adversely affect birds and diminish the motivation for creative conservation partnerships.”
Some former officials who signed the letter say Interior’s new legal opinion defies the clear wording of the act, which states: “It shall be unlawful to hunt, take, capture, kill … by any means whatever … at any time or in any manner, any migratory bird.”
But the Trump administration argues that the act was implemented in an overly aggressive or threatening way. “Interpreting the (act) to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed,” Jorjani wrote. The Trump administration has told reporters it will take several months to develop guidelines on how the legal opinion impacts the way field staff work.
While campaigning for the presidency, Trump blasted the Obama administration’s use of the Migratory Bird Treaty Act against the oil industry as “totalitarian tactics.” “The Department of Justice filed a lawsuit against seven North Dakota oil companies for the deaths of 28 birds while the administration fast-tracked wind projects that kill more than 1 million birds a year,” Trump said in May 2016, calling the case an example of “government misconduct.”
National Renewable Energy Lab researchers release a bald eagle from a lift during research to develop a radar and visual systems that prevent bird strikes with wind turbines.
He was echoing Harold Hamm, chairman, chief executive officer, and founder of Continental Resources Inc., who fought the prosecution for bird deaths in oil fields in North Dakota, calling it “patently wrong” because his drilling operation didn’t intentionally kill birds. A federal judge agreed with him and threw out the case.
Federal courts have been split over whether the act applies when birds are killed as a result of otherwise legal activities. Last year, Wyoming Rep. Liz Cheney, a Republican, sponsored a provision of the House energy bill that would amend the act so it no longer applies when birds are accidentally or incidentally killed. Conservationists worry that if passed, her provision could permanently enshrine the Trump administration’s new policy with disastrous consequences for birds. The bill could get a vote early this year in the House, but a Senate bill has yet to emerge.
Bob Dreher, a vice president of Defenders of Wildlife, says his conservation group will look for ways to block the new interpretation, but it won’t be easy. Legal opinions can have enormous impact on how the government functions but cannot be challenged in court the way regulations can be. Ashe says this reality inspired the former officials to sign their protest letter: “The public has no opportunity to comment, no opportunity to challenge the decision. They get no day in court.”
Some companies say they will continue to work with Fish and Wildlife to protect birds despite the Trump administration’s new policy. “We don’t want to be killing birds,” says Sherry Liguori, environmental manager of Rocky Mountain Power, the division of PacifiCorps that operates in Utah, Wyoming, and Idaho. PacifiCorps, one of the West’s leading power companies, retrofits 10,000 utility poles a year to make them less likely to electrocute birds, according to Liguori. Costs range from a few hundred to tens of thousands of dollars. On average the company spends $1,000 to $2,000 per pole, she says. “I can’t speak for other companies, but I know for Rocky Mountain Power, we’re looking at the long term,” Liguori says. “We don’t see a reason not to do this. We’ve found that it’s effective. It’s a win-win for birds. It’s a win-win for the company and customers.”
Still, the legal opinion is likely to limit much of the cooperation companies have provided in the past. “A lot of Americans don’t know anything about the Migratory Bird Treaty Act, but they love birds,” says Dreher, former acting assistant attorney general for the environment and natural resources division of the Justice Department and former associate director of the Fish and Wildlife Service. “This administration is selling out birds for industry — and dirty industry at that.”
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This decision will be reversed, the Administration has seriously underestimated the clout of both the Audubon Society and especially that of Ducks Unlimited.
A couple of conservatives turned me into a lifelong environmentalist. (Thanks, Mom and Dad!) And Mom taught me how to be a birdwatcher.
Zinke appears to be totally tone deaf. I agree that this won’t last long. Ducks Unlimited is surprisingly powerful.
Please review numbers of birds killed my windmills – the actual numbers is a FEE MAGNITUDES less than the number of birds killed my cats……it is a silly comment that many make and there is not statistical numbers that come close to justify even a passing comment
“The problem of cat versus bird is as old as time. If we attempt to resolve it by legislation who knows but what we may be called upon to take sides as well in the age old problems of dog versus cat, bird versus bird, or even bird versus worm. In my opinion, the State of Illinois and its local governing bodies already have enough to do without trying to control feline delinquency.
For these reasons, and not because I love birds the less or cats the more, I veto and withhold my approval from Senate Bill No. 93.”
Adlai Stevenson
~~~~~~~~~~~~~~~
Vetoing a Bill that would have imposed fines on owners who allowed cats to run at large. (23 April 1949)
Another thing that kills birds is windows. Every so often I hear a thud as a bird flys into one of my windows (luckily not big enough to break them) but I am given to understand that glass sky scrapers do get a lot of bird strikes. Heard of a co-worker who had a bird big enough to break a window hit it.
You are definitely not wrong. My parent’s cats bring in multiple birds every week.
Nothing says freedom like having our God given rights to harm wildlife restored.
If you love something, set them free from regulations that will save them from us. If regulations come back they’re yours; if they don’t they never will.
It is just a cheep trick.
The Dick Chaney wing of the Republican Party will become more and more revolting over their prerogative to Shoot at other beings.
But this will reduce the number of ducks they can shoot. This will really piss off the NRA faction of the GOP.
Having worked on environmental issues for a few decades, I still am surprised by the amount of support environmental projects could get from conservatives of you could get Ducks Unlimited (or Trout, Pheasants, etc.) on board.
Lots of conservatives are hunters. They get as upset, perhaps even more upset, as the greens do when some industry craps all over the ducks that they are planning to eventually have for dinner or drive the deer away by ruining the forests.
In my neck of the woods, the divisions between environmentalists and conservatives is mostly on the management of predators. Even there the conservatives are not uniform, half of the hunters wants to preserve wolves, bears and so on – the other half, which doesn’t, is mostly farmers. Farmers always wanted to annihilate everything that could potentially eat something of “theirs”.
don’t like birds being killed by wind turbines or solar concentrators or fracking? there’s always nuclear power. just being honest.
I understand your point, but the article isn’t about debating the best energy sources.
It’s pointing out that due to regulations, energy companies found ways to comply (without going broke), saving many birds. It’s been working. That particular ‘system’, if you will, ‘ain’t broke’, so why dismantle it to benefit a very, very few?
Without those regulations, they have no ‘incentives’ to protect the birds.
Unfortunately, we don’t have a regulation. We have a statute that makes it a criminal act to kill a bird, and the US Fish and Wildlife given the power to selectively enforce this criminal law as they see fit. I don’t agree that this approach is “working”.
Habitat loss is main killer of birds and God knows what the death of insects is doing to them. We need more public lands and wildlife corridors.
I have yet to meet an “environmentalist” dressed in loincloth living off the land. Many are wearing industry made name-brand clothes, driving cars, buy all of their food, you know, hypocrites.
There aren’t any “evironmentalists” who practice what they preach? Nonsense. Simply because people who care about the environment they live in happen to exist during the 21st CENTURY doesn’t make them hypocrites. You either care about the earth or you only care about taking whatever you can get. Otherwise, known as greed.
This is a set of fake criteria faked-up to issue a fake opinion on who is environmentalist and what is hypocritical.
I remember once eating a can of sardines and an aquaintance of mine at the time deciding to question my “environmentalitism” because I was eating sardines. I said that I support anti-pollutionism in order to keep the ocean chem-clean so that the sardines who live in it would stay non-toxic enough for me to eat. I offered the thought that that was what environmentalism was all about. Clean non-toxic sardines for me to eat. He gave up in his effort to twit me on the matter.
Environmentalists don’t always fit into easy stereotypes, Edward Abbey would toss beer cans out the window after he had drained one and opened another, en route to somewhere.
You should look up some of the communes up in the mountains of the Southeast. They are some of the grittiest people I’ve ever had the chance to meet.
Blame the system, not the players. Many environmentalists would prefer to live differently and in closer accordance to their ethical beliefs. But it’s not possible in 21st century America, and like all of us environmentalists didn’t ask to be born into a capitalist society with limited choices w/r/t/ lifestyle.
The kind of ethical purity you posit here is a strawman designed to discredit the arguments without engaging with them. Think harder.
“The public has no opportunity to comment, no opportunity to challenge the decision. They get no day in court.”
Sadly, this new way of governing & ‘democracy’ existed before Trump.
His administration is just by far the most blatant about it. Especially when it comes to the environment.
This latest action absolutely infuriates me! This is the first I’m hearing of it, thanks to NC.
I believe “if it ain’t broke don’t fix it” for the most part.
Most energy companies have cooperated & found ways–often simple & inexpensive, as pointed out in the article–to help prevent the loss of so many birds. Absolutely absurd he wants to roll that back.
And don’t even get me started on his stupid wall.
Why has the cost suddenly gone from $18M before the govt shutdown, to $28M in their agreement?
Time to once again go back & enjoy today’s beautiful Antidote du jour to get my normally low blood pressure back down, from reading this article.
The wall is at $28 billion. Pretty soon we’re talkin’ real money.
That’s barely going to pay for the wall itself. The sensor networks, drones, C^3-centers and data-processing facilities for all those sensors are going to be way more that that, never mind the security contractors running the on-site staffing of the thing.
Maybe The Donald is gonna take that from the military budget?
Personally, not thrilled with the obvious outcome of this interpretation. However, I did skim the memorandum, and it struck me as being a reasonable statutory interpretation.
But, there is something here that bothers me. From the OP:
“Lynn Scarlett, who was deputy Interior secretary and acting Interior secretary under George W. Bush, says the old interpretation of the law protected birds without being too onerous for industries. Companies were prosecuted only after ignoring repeated warnings. ‘The act and the way it has been implemented for many years has made people come to the table and think about important actions to protect birds,’ says Scarlett, now managing director of The Nature Conservancy. ‘Narrowing that is going to adversely affect birds and diminish the motivation for creative conservation partnerships.’ ”
Likewise, in the letter to Secretary Zinke:
“Over the years, career professionals and political leadership in the U.S. Fish and Wildlife Service (FWS), the Department of the Interior, and Department of Justice have adapted to ensure that the enforcement of this law fairly balances the goal of economic progress with the impact of that progress on bird populations.”
What struck me in both cases is the implicit assumption that executive branch officials act in good faith in prosecutions (i.e., that prosecutions under the relevant laws are only initiated on a good faith discretionary basis). In other words, there is faith in federal officials that I’m not sure is well-placed, based on current evidence.
In this regard, I am reminded of the recent time the federal government tried to prosecute a woman under the law implementing the Convention on Chemical Weapons. The basic facts of the case: a woman attempted to poison her best friend, because the woman’s husband had impregnated the friend. It does not strike me as a good faith prosecution, but rather an attempt to shoehorn a state crime into a federal nexus. (One news article for reference: https://www.npr.org/sections/thetwo-way/2014/06/02/318207271/chemical-weapons-law-doesn-t-apply-to-jilted-lover-supreme-court-rules).
Just to add a few points:
1. Because the memorandum is an interpretation of the law, it’s not binding on anyone (including the federal government, which could change “its” mind later) and the interpretation also is not subject to challenge as it is not a regulation with the force of law.
2. Nor could an advocacy group indirectly challenge the interpretation by attempting to compel prosecution. Courts cannot do that, as the decision to prosecute is an executive function.
To be honest, the memorandum (assuming its accurate) makes it sound like the judicial interpretation of the relevant law is actually a bit of a mess, and Congress really should fix it.
The migratory bird treaty act is a poorly written and selectively enforced law written in the 1800’s when the major threat to birds was hunting. So, the original interpretation required intent. Under the Obama administration, the interpretation was broadened to eliminate intent, so you would be criminally liable for any inadvertant mortality, such as mowing your hayfield, hitting a bird with you car, your cat killing a bird, or having a bird fly into your window. That gave the US Fish and Wildlife Service sole discretion to pick and choose who to enforce against. Certainly the wind, oil, and power industries should implement bird protection measures, but arbitrary enforcement of an overbroad CRIMINAL law (meaning any violation is a misdemeanor) is not the right way to go about it. There is loads of information about the major causes of bird mortalities on the web as well as various legal opinions and interpretations of the law for anyone who wishes to become informed.
I was working on wind projects during the Bush II administration where bird kill mitigation was a requirement, so it predates Obama.
True. But the interpretation memorandum under discussion reverses a memorandum written by the Obama administration that memorialized the criminality of incidental take.
But-such “wrong ways” of going about things tend to happen when the “right way” is either hotly disputed or there is simply no realistic prospect of advancing new legislation.
The rediscovery of the ancient Rivers and Harbors Act to deal with post ww2 water pollution may not have been the hypothetically ideal tool, but it did fairly quickly achieve a situation in which the Cuyahoga river no longer caught fire, you could again stick your hand in the water on the Lake Erie shore without it coming out as a gunky black glove and Rivers like the Hudson and Schuylkill were no longer industrial sewers along their lower reaches.
The present choice is not between the method you find inferior and some other (unspecified) method you might prefer, but between that method or none at all.
Ummm no. In a Democracy, you can’t simply throw up your hands and say the ends justify the means and therefore arbitrary criminal enforcement is fine. And what does the Rivers and Harbors Act have to do with this issue? The Clean Water Act was passed to address polluted waters. That legislation advanced just fine and was very successful in cleaning up our nations waters.
“The shepherd drives the wolf from the sheep’s throat for which the sheep thanks the shepherd as his liberator, while the wolf denounces him for the same act as the destroyer of liberty. Plainly, the sheep and the wolf are not agreed upon a definition of liberty.” Abraham Lincoln
Yes— It’ an old problem.
I think we can all agree on the goal of protecting birds. The question is whether an arbitrarily applied criminal statute is the best approach.
The sheep thanks the shepherd only until it finds itself coatless or mutton.
The only thing that upsets me more than how utterly craven the GOP is, is how useless the Dems are at countering the GOP.
Obama had a Dem congress and did nothing to reverse W, because they either didn’t want to (ya think?) or they had no idea how to wield power (or both, considering that the Dems don’t seem to understand the EC or succession). A pox on both, and that’s being kind.
President Obama only had a “Dem congress” for a few months. Republicans took control after midterms in 2010. Before that GOP prevented A Franken seating with lawsuits, and Ted Kennedy died. Meanwhile GOP decided they were going to do everything they could to block everything and anything President Obama tried to do by “block voting” which in effect turned every vote into a “supermajority” vote
I get it, you hate Trump. I hate Trump too.
But this is not about economics, is it? Has this site turned into NPR?
Help me. Are you therefore going to ignore the bad stuff Trump is doing? What kind of logic is that?
For many people the definition of economics must include our wildlife and wild spaces simply because humans, having such a large impact on the entire biosphere, bring them into our economy. For example, hunting is a big revenue generator for some economies. Likewise, going to a national park has become a lucrative past time. The very ubiquity of human influence on the globe does not allow us the comfort to ignore our impacts. Policies and human activities have current impact which will reverbrate long into the future; all is economic (in broad and older interpretation of economics) in the long run.
The economy under neo-liberal market ideology has entered into every facet of human existence; financialising governments, education, sciences and our wildernesses. Imo, trying to hive off sections of our experiences because they don’t fit recent and limiting definitions of economics would be tantamount to neglect by a citizen of a democracy. Modern politics go hand in hand with economics, and politics permeates every facet of our current existence. Neo-liberal economics coupled with its economic conservative roots knows no limits to it rapacious desire to turn everything into capital, including any remaining wilderness and it inhabitants. It just business, nothing personal.