by Mary Sinker (filling in for Tim Manns).

What’s Next for the Migratory Bird Treaty Act (MBTA)?  2018 marked the 100 year anniversary of one of our nation’s most successful laws when it comes to protecting birds.  National Geographic declared 2018 to be the “Year of the Bird”, and organizations from National Audubon to the Cornell Lab of Ornithology to local birding clubs and groups celebrated how protecting bird deaths from incidental take and securing our energy and economic futures were not mutually exclusive. 

Enter the new Administration. Within a year, a decades-long precedent that the Federal government recognized the MBTA applied to individuals, oil and gas development and other industrial development, was reversed by the Dept. of the Interior.  Moving forward, only bird deaths resulting from actions undertaken for the specific purpose of killing the birds would be applicable to the MBTA.  So, an individual could take down a barn, with full knowledge it was home to baby owls, and not be held liable for their deaths unless the intention of taking down the barn was specifically to kill the birds.  What about an oil spill?  Under the new interpretation, oil spills not caused for the specific purpose of killing birds would not be applicable to the MBTA.  Imagine if Exxon Valdez or Deepwater Horizon occurred now?  Both companies would be off the hook for damages under the MBTA. 

National Audubon, numerous conservation groups, and eight states immediately sued to vacate the new interpretation.  The lawsuit in the US District Court of New York (Southern District) is in the briefing phase.  You can follow the case (Docket #18-CV-4596) at Pacer.gov.