The U.S. Interior Department's recent suspension of legal opinions concerning the accidental killing of birds has triggered a wave of concern among conservationists. This memorandum, dated February 28 but released publicly only recently, revokes Biden-era guidelines that imposed penalties on companies engaged in activities such as oil and gas drilling, wind energy production, mining, and construction that inadvertently harmed numerous bird species including ducks, cranes, pelicans, and owls.

This decision represents a notable victory for the oil and gas sector, which has long argued that the government’s enforcement of the Migratory Bird Treaty Act (MBTA) penalised businesses for actions taken without intent to harm wildlife. This shift in legal interpretation has sparked a backlash, with conservation advocates warning about the status of already dwindling bird populations threatened by climate change and habitat destruction.

Oil spills

Tara Zuardo, an attorney at the Center for Biological Diversity, expressed grave concern: “This is going to affect a significant number of migratory birds, and we are already seeing plummeting populations. This is big.”

Scott Lauermann, a spokesperson for the American Petroleum Institute, the industry’s primary lobbying organisation, affirmed their commitment to protecting migratory birds and expressed intentions to collaborate with the Interior Department on policies balancing wildlife conservation and energy production. “Our industry is committed to the protection of migratory birds, and we look forward to working with the Department of the Interior to advance common sense policies that both protect wildlife and support American energy dominance,” he stated.

The MBTA, enacted in 1918 in response to the decline of several bird species, is one of the country’s oldest environmental laws. Initially designed to halt the widespread killing of birds for sport and fashion, the act has served as a critical tool for holding corporations accountable during environmental crises. Landmark incidents like the Exxon Valdez and Deepwater Horizon oil spills resulted in the deaths of hundreds of thousands of birds, leading to stricter enforcement of the act.

Protective measures

Harold Hamm, a billionaire oil tycoon and significant supporter of Trump’s 2024 campaign, has been a vocal critic of the penalties imposed under the MBTA. His personal stake in the issue was highlighted in 2011, when federal prosecutors charged several oil companies, including his own, for failing to prevent the deaths of migratory birds in North Dakota waste ponds, with potential fines reaching $15,000 per bird.

Furthermore, while fossil fuel operations pose a threat to avian life, renewable energy sources are not without their own risks. Wind turbine blades have also been implicated in bird fatalities, albeit research indicates that domestic cats are responsible for far more deaths annually in the U.S. Notably, strategies such as painting turbine blades black are being studied for their potential to mitigate these risks.

Andrew Carter, director of conservation policy at Defenders of Wildlife, underscored the importance of protective measures for migratory birds amidst the push for renewable energy. “Renewable energy is important, and it can be done in a way that respects that these birds have to be protected,” he noted.

This legal issue has seen a see-sawing trajectory across multiple presidential administrations. During Trump’s presidency, the Interior Department limited the scope of the MBTA to only those cases where companies were found to have intentionally killed birds—a move that a federal court invalidated in 2020, underscoring the act’s broader protective intent.

In 2021, the Biden administration attempted to restore the protections that had been cut during Trump’s term. However, the latest memorandum from the acting chief lawyer, Gregory Zerzan, suspends not only the bird-related opinions but also 19 others regarding issues like mining waste and wildlife refuges, pending a comprehensive review of their validity.

Elizabeth Peace, an Interior Department spokesperson, described the suspension as a routine process, assuring that updates would come as the review progresses and highlighting a potential shift back towards Trump-era policies.

Washington Post