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Interior proposing revocation of Trump-era rollback on bird protections

Interior proposing revocation of Trump-era rollback on bird protections
© U.S. Fish and Wildlife Service

The Biden administration is proposing a revocation of its predecessor’s rule that removed industry penalties for accidental or incidental bird deaths, taking the first step to repeal the rule. 

The Interior Department announced the proposed revocation in a statement on Thursday, citing “significant concerns” from the public and international partners, as well as court challenges. 

The Trump administration's actions were a significant rollback to the implementation of a more than 100-year-old law called the Migratory Bird Treaty Act (MBTA). It acknowledged at the time that its actions may result in companies deciding not to carry out best practices to limit incidental bird deaths. 

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In the proposed rule, which won't formally be published in the Federal Register until Friday, the Biden administration argued that the Trump rule doesn't reflect the "best reading" of the law's text, purpose and history, and that it is "inconsistent with the majority of relevant court decisions addressing the issue."

“The Migratory Bird Treaty Act is a bedrock environmental law that is critical to protecting migratory birds and restoring declining bird populations,” Interior Secretary Deb HaalandDeb HaalandSenate confirms Biden pick for No. 2 role at Interior Sanders opposes Biden Interior nominee in procedural vote OVERNIGHT ENERGY: Judge halts Biden pause on new public lands oil leasing | Democrat presses Haaland on oil and gas review | EPA puts additional delay on Trump lead and copper in drinking water rule MORE said in a statement. “Today’s actions will serve to better align Interior with its mission and ensure that our decisions are guided by the best-available science.”

The law 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.

The Trump administration has argued that it’s unfair to penalize companies for incidental or accidental deaths and said in a legal opinion in 2017 that applying the rule to incidental or accidental harm “hangs the sword of Damocles over a host of otherwise lawful and productive actions.”

That opinion was struck down in court last year. U.S. District Judge Valerie Caproni wrote that the “opinion’s interpretation runs counter to the purpose of the MBTA to protect migratory bird populations.”

In a statement supporting the rule, then-Interior Secretary David Bernhardt pointed to a 2015 court decision that has supported the administration's interpretation.

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“This rule simply reaffirms the original meaning and intent of the Migratory Bird Treaty Act by making it clear that the U.S. Fish and Wildlife Service will not prosecute landowners, industry and other individuals for accidentally killing a migratory bird," he said in a statement when it was finalized. 

The Biden administration rescinded the opinion in question in March and said at the time that it planned to propose revocation of the Trump-era rule.

And Haaland has named it as one of the rules that's on the top of her list to reverse. 

Environmental advocates praised the Biden administration for taking a step toward getting rid of the rule, but some argued that there is a faster way to rescind it. 

"The Biden administration is right to reverse the horrific Trump rule, which allows millions of migratory birds to be killed with impunity,” said Eric Glitzenstein, the Center for Biological Diversity’s litigation director, in a statement “But a federal court already shot down the legal interpretation underlying Trump’s policy, so the Interior Department can and should jettison the rule immediately."

In its new proposal, the Biden administration said it believes that "the most transparent and efficient path forward is instead to immediately propose to revoke the ... rule."

Meanwhile, some industry players expressed disappointment that the Trump move would be undone.

"This is not a case of punishing 'bad actors' but rather a situation where companies are set up for failure," said a statement from Mallori Miller, vice president of government relations for the Independent Petroleum Association of America.

--Updated at 12:19 p.m.