Trump Allows Migratory Bird Killings, Cancels Further Protection

The Trump administration will allow unintentional bird killings under the Migratory Bird Treaty Act and will cancel a rulemaking that would have enhanced bird protections from oil and gas operations.

The US Fish and Wildlife Service said Friday it is withdrawing a proposed rulemaking announced by the Biden administration in 2021 that would have helped to protect migratory birds under the 1918 act.

The withdrawal follows Interior solicitor’s April 11 reinstatement of a 2017 legal opinion from the first Trump administration that said the MBTA prohibits only intentional migratory bird killings.

The reinstatement defies a 2020 federal court ruling that vacated the 2017 solicitor’s opinion because it failed to align with the MBTA’s intent to protect migratory birds from accidental killings.

The first Trump administration appealed the ruling, but after the 2020 election, the Biden administration chose not to proceed with the appeal and reversed the opinion to continue the federal government’s century-long practice of punishing accidental bird killings.

The fate of the MBTA has broad implications for the oil and gas industry, which is subject to fines for violations. The Obama administration fined BP plc $100 million for accidentally killing many thousands of birds as a result of the Deepwater Horizon oil disaster.

Ninety percent of migratory bird deaths are related to oil and gas operations, and a primary focus of the Biden rule was to fine oil companies for killing birds in oil spills and pits dug near oil wells, Fish and Wildlife Service officials said in 2021. The agency permits some bird killings necessary for industrial activity, deaths known as “incidental take.”

The Trump administration’s decision to allow accidental bird killings will likely be challenged in court, said Melinda Taylor, senior lecturer at the University of Texas at Austin School of Law.

‘Illegal This Time, As it Was Before’

“This is the latest volley between presidential administrations over the issue of whether the law prohibits unintentional, as well as intentional activities that harm migratory birds,” Taylor said.

The US District Court for the Southern District of New York struck down the first Trump administration’s interpretation of the MBTA, and “now the administration is trying again, despite the previous court’s ruling,” she said. “I expect a court to find it to be illegal this time, as it was before.”

The Trump administration is picking a legal fight over the MBTA to open up the question over whether the MBTA really requires punishment for accidental bird killings, said JB Ruhl, a law professor at Vanderbilt University Law School.

The MBTA decisions, together with the Trump administration’s plan to redefine “harm” under the Endangered Species Act to punish only intentional killings of imperiled species, will leave migratory birds more vulnerable than ever before, said Kristen Boyles, managing attorney at Earthjustice, a nonprofit environmental law firm.

“If these proposals are finalized and withstand legal challenges, they will affect migratory birds and listed species by making it harder to protect the habitat that the species need to survive and recover,” she said. “That’s because habitat destruction and damage is the leading cause of harm to species.”

Long-distance migratory bird populations are declining globally and are especially vulnerable to illegal killings, according to a 2024 United Nations report on the state of the world’s migratory birds.