The Trump administration was sued Tuesday over its plans to strip protections from migratory birds.
The rule, finalized two weeks ago, ends penalties for companies whose projects or infrastructure accidentally kill birds.
Critics, as well as the court, have argued the rule is a gutting of the Migratory Bird Treaty Act (MBTA), which has for more than 100 years offered protections to 1,000 different types of birds.
The new rule is based on a legal opinion from the Department of the Interior that punished the oil and gas industry, construction companies and others only if their work intentionally kills birds, ending the practice of punishing companies that “incidentally” kill birds.
The move was already struck down in court, with a judge calling it “contrary to law.”
The Natural Resources Defense Council (NRDC) filed the suit alongside six other environmental groups.
“Trump’s Interior pressed forward in its last-ditch bidding for the oil and gas industry despite a court decision to the contrary, as well as an overwhelming majority of public opposition. This is a disaster for birds, and communities that thrive with them, which requires immediate repair by the Biden administration and ultimately, Congress to put any doubt to rest,” Katie Umekubo, a senior attorney at NRDC, said in a release.
The Fish and Wildlife Service, which promulgated the rule, declined to comment.
Interior Solicitor Daniel Jorjani in 2017 drafted the memo the latest rule is based on, writing that applying the law to “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.”
Environmental groups' previous success in challenging Jorjani’s memo could bode well for challenging the rule itself.
His memo was struck down in a decision from U.S. District Court for the Southern District of New York Judge Valerie Caproni that begins with a quote from To Kill A Mockingbird.
“The Jorjani opinion’s interpretation runs counter to the purpose of the MBTA to protect migratory bird populations,” she wrote.
“The opinion freezes the MBTA in time as a hunting-regulation statute, preventing it from addressing modern threats to migrating bird populations,” she wrote in a decision vacating the opinion, calling it “an unpersuasive interpretation of the MBTA’s unambiguous prohibition on killing protected birds.”