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Biden administration to propose revocation of Trump bird rule

The Biden administration will propose a new rule taking aim at its predecessor's rollback of protections for migratory birds, an Interior Department spokesperson said Monday.

After a one-month delay, the Trump administration rule, which removed penalties for companies that accidentally or incidentally kill migratory birds, went into effect Monday. 

“In the coming days, Interior will issue a proposed rule to revoke the corresponding rule that is going into effect today,” the Interior spokesperson said in a statement. 

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The spokesperson also said that it was rescinding a Trump-era legal opinion backing up its interpretation of the Migratory Bird Treaty Act (MBTA), which argued that the law did not apply to accidental or incidental harm to birds.

“Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions,” said the now-rescinded 2017 opinion. 

The Biden administration said that this opinion “overturn​ed decades of bipartisan and international consensus and allowed industry to kill birds with impunity.”

The spokesperson said the department would “reconsider its interpretation of the MBTA to develop common sense standards that can protect migratory birds and provide certainty to industry.”  

The MBTA has protected more than 1,000 different species of birds for more than 100 years by punishing companies whose projects cause them harm.

It played a part in the case against BP following the 2010 Deepwater Horizon oil spill. The company pleaded guilty to charges including a violation of the MBTA and ended up paying $100 million to support wetlands preservation and conservation as part of a settlement.

In its rule exempting industry from punishments, the Trump administration acknowledged that companies may not to carry out best practices that limit incidental bird deaths.

Though the Biden administration seeks to take action, the Trump administration’s rule is expected to remain in place until the Biden administration finishes the regulatory process — unless a court challenge to the Trump rule prevails before that time.