The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following.
Why it matters
The Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703-711, makes it unlawful to take (“harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct”) individuals of most bird species found in the United States, unless that taking is authorized by a permit. These protected bird species face many dangers in the form of long-line fishing, oil pits and spills, high-tension power lines, communications towers, and other large infrastructure. Bird deaths attributed to these activities and structures are known as “incidental (or unintentional) takes”. Enforcement of the MBTA has served to limit these incidental takes by incentivizing companies to develop and implement best practices and technologies to safeguard protected birds.
Many more birds are killed by incidental takes than direct takes, and for the past fifty years or so, both have been prohibited under the MBTA. Excluding incidental takes from the MBTA removes the incentive for companies and government agencies to protect birds. According to studies by the Audubon Society, this change could put up to 64 million birds per year at risk.
Incidental takes are no longer illegal under the MBTA. The Trump administration, in Department of the Interior’s Solicitor’s Opinion M- 37050, permanently withdrew the Obama administration’s Solicitor’s Opinion M-37041, which had affirmed that incidental taking of migratory birds was prohibited. Two sets of environmental groups filed suit on May 24, 2018 asking the Southern District of New York to vacate Opinion M-37050 and reinstate the Obama-era opinion.