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Interior Cites ‘Miracle on the Hudson’ to Drop Bird Proposal (1)

June 10, 2020, 9:30 AMUpdated: June 10, 2020, 12:56 PM

Eleven years after the “Miracle on the Hudson,” the Trump administration is using the ditching of U.S. Airways Flight 1549 in the Hudson River after a bird strike as evidence that protections for migratory birds should be dropped.

Environmental groups are criticizing the administration for using the 2009 aviation accident to justify rolling back protections for migratory birds when their populations are declining.

The U.S. Fish and Wildlife Service cited the ditched flight, which lost power after Canada geese struck both engines, as part of its draft environmental review published June 5 for a proposed rule re-interpreting the Migratory Bird Treaty Act of 1918. The rule would prevent companies from being fined for accidentally killing migratory birds such as geese, herons, ducks, warblers, hummingbirds and swans.

The rule would affect the fate of more than 1,000 bird species nationwide, many of which are declining because of climate change and development but are essential to the stability of ecosystems globally. Many migratory bird species are indicators of ecoystem health and in some regions help to control pests and pollinate plants.

The proposed rule will harm many bird species and speed up the rate at which they vanish from the skies, the Fish and Wildlife Service said in its impact statement. The rule will also reduce the likelihood that companies would take steps to prevent birds from dying, and damage ecosystems and the services they provide to people.

But, the “regulatory clarification” the proposed rule would provide is worth the trade-off, the service said.

For more than a century, companies were fined for accidentally killing migratory birds, but a 2017 Interior solicitor’s ruling re-interpreted the law, saying it applies only to intentional bird killings. The proposed rule would codify that ruling.

Big Decline

Some important groups of marine birds such as auklets and puffins declined by about 31% between 1970 and 2017 due to offshore oil drilling, climate change, and plastic pollution, the Fish and Wildlife Service said in its 69-page environmental impact statement for the proposed rule.

But birds also crash airplanes and spread the avian flu, the the agency said in the statement.

“Migratory birds can produce negative social or economic outcomes, such as their role in the spreading of disease or agricultural damage, or causing damage to infrastructure,” the statement also said.

Bird collisions that could potentially bring down airplanes, such as the U.S. Airways flight, are “a major concern,” the service said in the statement, citing more than 10,000 bird strikes recorded at U.S. airports in 2011.

On Jan. 15, 2009, U.S. Airways Flight 1549 struck a flock of geese minutes after takeoff from LaGuardia airport, knocking out power to both engines. Capt. Chesley “Sully” Sullenberger managed to successfully land the plane on the Hudson River. All 155 passengers and crew surivived.

Aircraft Strikes

Aircraft bird strikes are a big issue nationwide, but mitigation measures are routine at airports, Elizabeth Klein, deputy director of the State Energy and Environmental Impact Center at the New York University School of Law, said.

“There is no evidence that migratory birds are causing such significant impacts in such a way that would justify lifting protections,” Klein said.

Airlines for America, a trade group representing major airlines, declined to comment.

In previous environmental reviews conducted under the National Environmental Policy Act, the Fish and Wildlife Service has analyzed the harm that cormorants, vultures and invasive species can do to people, service spokesman Gavin Shire said in a statement.

The proposed rule—known as the “preferred alternative” in the impact statement— is one of three alternatives the service is considering. Those include allowing the Interior Solicitor’s decision to stand without a rule change, and another that rescinds the 2017 ruling and continues with the century-long interpretation of the MBTA.

“The choice of preferred alternative was largely driven by the solicitor’s interpretation of the MBTA which found that the previous implementation of the act was inconsistent with the plain reading and legislative history of the law,” Shire’s statement said.

Environmental groups say the environmental impact statement is extremely unusual and is not a thorough scientific analysis of all the ways the proposal would harm migratory birds.

‘Boggles the Mind’

“I have never seen the title, ‘Detrimental Impacts of Migratory Birds on Humans’ in an environmental impact statement,” Katie Umekubo, senior attorney for the Natural Resources Defense Council, referring to a section title in the document.

“It boggles the mind that our nation’s top wildlife agency would associate harm to humans from birds in an environmental impact statement for a statute singularly focused on bird protection,” she said. “How is the avian flu even relevant?”

The Fish and Wildlife Service’s brief environmental review isn’t a serious analysis, said Erik Schneider, policy manager for the National Audubon Society.

“The use of an aviation accident to justify the loss of millions of birds as a result of repealing decades of bird protections is insulting,” he said.

Unevenly Enforced

Migratory birds are frequently killed by industrial activities such as airplanes, oil well waste pits, and oil spills, such as the BP Deepwater Horizon disaster.

BP was fined $100 million for the birds that died in the 2010 Deepwater Horizon oil spill. Under the proposed rule, a company responsible for a similar spill would avoid fines.

The service said the MBTA had been enforced unevenly across the country, leaving companies to wonder how the law would apply in any given location.

The proposed rule would define exactly what the law applies to nationwide by codifying the 2017 ruling as a way to provide companies with “legal certainty,” the service said.

The draft rule is open for public comment through July 20.

(Updates throughout, including FWS comments in the 16th paragraph. )

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Renee Schoof at rschoof@bloombergindustry.com

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