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Daily News Blog

30
May

Lawsuit Seeks to Restore Protections for Migratory Birds

(Beyond Pesticides, May 30, 2018) Six environmental groups have sued the Trump Administration for reversing a long standing interpretation of the Migratory Bird Treat Act (MBTA) that provides migratory bird protections from incidental killing or “taking” caused by industrial activities. The lawsuit, National Audubon Society v. Department of the Interior, was filed May 24, 2018 in the Southern District of New York, challenging as “unlawful and arbitrary and capricious the December 22, 2017 Solicitor’s Memorandum M-37050, which was issued by the office of the Solicitor of the Department of the Interior (“DOI”) and reverses Defendants DOI’s and the U.S. Fish and Wildlife Service’s (“FWS” or “Service”) longstanding interpretation and implementation of the Migratory Bird Treaty Act of 1918.” The Act’s prohibition on the killing or “taking” of migratory birds has long been understood to extend to incidental take from industrial activities — meaning unintentional but predictable and avoidable killing.

Last year, the Trump Administration issued a Memorandum gutting federal protections for migratory birds under the Migratory Bird Treaty Act (MBTA). The plaintiffs, including American Bird Conservancy, Center for Biological Diversity, Defenders of Wildlife, National Audubon Society, National Wildlife Federation, and the Natural Resources Defense Council, are seeking to protect waterfowl, raptors, and songbirds under the MBTA.

In the Memorandum issued December 2017, the Administration abruptly reversed decades of government policy and practice — by both Democratic and Republican administrations — on the implementation and enforcement of the MBTA. Under the Administration’s revised interpretation, the MBTA’s protections will apply only to activities that purposefully kill birds. Any “incidental” take — no matter how inevitable or devastating the impact on birds — is now immune from enforcement under the law.

According to the coalition that filed the lawsuit, the risk of liability under the MBTA has long provided the oil and gas industry, wind energy development companies, and power transmission line operators with an incentive to work with the U.S. Fish and Wildlife Service to minimize bird deaths. For example, in an effort to protect migratory birds and bats and avoid potential MBTA liability, the wind industry, conservation groups, and the U.S. Fish and Wildlife Service worked to develop comprehensive guidelines aimed to ensure best practices for siting and developing wind farms. The Administration’s new policy eliminates this incentive for industries and individuals to minimize and mitigate foreseeable impacts of their activities on migratory birds, putting already-declining populations of our nation’s songbirds and other migratory birds at risk.

The MBTA allows for criminal enforcement actions to target incidental take resulting from industrial activities that foreseeably and predictably kill migratory birds, such as operating oil pits without precautions to protect birds, misapplying pesticides in areas known to be frequented by birds, operating contaminated waste treatment ponds in the absence of any measures to safeguard birds, and erecting power lines in areas with high concentrations of migratory birds. If incidental take liability is eliminated, industry will no longer need to take measures to protect birds from these hazards.

“The Trump administration’s rollback of the Migratory Bird Treaty Act is an absolute disaster for America’s birds,” said Noah Greenwald, endangered species director at the Center for Biological Diversity. “Many bird species are already declining from habitat destruction and a host of other threats. This rule will allow the death of even more birds, whether they’re landing on polluted ponds left uncovered by the oil and gas industry or have their nest trees cut down from underneath them. It’s tragic.”

In addition, when the 2010 BP Deepwater Horizon disaster spilled more than 210 million gallons of oil in the Gulf of Mexico more than 1 million birds were killed in the four years following the blowout. BP paid $100 million in fines under the MBTA that supported wetland and migratory bird conservation. The new interpretation would bar the federal government from seeking such mitigation under the MBTA for devastating oil spills in the future.

“We cannot let Secretary Zinke add one of the oldest and most important laws for birds to his list of anti-environmental giveaways, especially when birds are in critical need of protection. Drastically slashing the reach of the MBTA and removing accountability for preventable bird deaths is unacceptable,” said Katie Umekubo, Natural Resources Defense Council, senior attorney, nature program.

Populations of birds, like other pollinators, have been declining. Researchers have found that small amounts of pesticides like the neonicotinoids are enough to cause migrating songbirds to lose their sense of direction. Recently, French scientists and ornithologists say parts of their country’s forests, streams, and bucolic landscapes could be completely devoid of birdsong this year, as the results of data that show staggering declines in bird populations linked to the intensification of agricultural practices and pesticide use.

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

Source: Center for Biological Diversity

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