Taking a step with implications for oil and natural gas infrastructure, the US Fish and Wildlife Service issued a final regulation Jan. 5 clarifying that unintentional injury or death of migratory birds is not prohibited under the Migratory Bird Treaty Act.
Migratory bird protections can affect pipeline projects by limiting times of year when tree cutting can occur to avoid nesting seasons, and can also carry costs for developers including mitigation payments.
Early in the Trump administration, the Department of Interior Solicitor Daniel Jorjani issued a legal opinion stating that an action that unintentionally harms or kills migratory birds is not barred under the act when the underlying purpose of an activity is not to harm birds.
Conflicting rulings
Faced with conflicting circuit court holdings, and an August 2020 district court ruling that vacated that solicitor's opinion as contrary to the "unambiguous prohibition on killing protected birds" in the law, FWS has moved to codify the Trump administration position in a final rule Jan. 5. The regulation is among a series of environmental rules the Trump administration is completing in its final weeks.
"This rule simply reaffirms the original meaning and intent of the Migratory Bird Treaty Act [MBTA] by making it clear that the US Fish and Wildlife Service will not prosecute landowners, industry and other individuals for accidentally killing a migratory bird," said Secretary of Interior David Bernhardt in statement Jan. 5.
Under the new rule, FWS defined the scope of the MBTA's prohibitions to reach only actions directed at migratory birds, their nests, or their eggs.
Environmentalists have argued that rule would gut one of the nation's oldest environmental protections, harm birds already facing catastrophic declines, let corporate actors escape responsibility, and diminish actions to reduce bird impacts.
Responding to the final rule, the Natural Resources Defense Council in a Jan. 5 statement called on Congress and the Biden administration to "reinstate bedrock protections for birds" by reopening the rulemaking to address stakeholder concerns and considering a conservation-focused incidental take permitting program under the act.
Katie Umekubo, an NRDC attorney, said FWS has dropped off the radar for ushering nesting season avoidance for construction, with project-level consequences when state agencies don't step in to fill the void.
Pipeline view
Pipeline companies, for their part, have argued the prior interpretation of the MBTA resulted in unpredictable enforcement of a law that carried criminal liability, without clear guidance for pipelines.
The Interstate Natural Gas Association of America supported the Trump administration's proposed rule in comments in March, arguing the prior interpretation created "significant, unreasonable challenges for industry and was implemented in an ad hoc and unpredictable manner."
"Although INGAA members regularly take proactive measures to avoid and minimize impacts, they cannot completely eliminate all potential for migratory bird impacts that may incidentally result from natural gas pipeline construction and operation activities," INGAA wrote. Under the previous interpretation, "such incidental take was a violation of the MBTA and could subject the members to criminal liability with no viable defense."
Instead, the group noted pipelines often relied upon assurances FWS would refrain from enforcement for incidental takes occurring during construction in exchange for compliance with a "voluntary conservation plan," with variation across FWS regions.
In some instances, developers were "compelled to incur large voluntary migratory bird mitigation payments that totaled millions of dollars for individual projects," INGAA said in those comments.
Despite Trump administration's efforts to add certainty, Umekubo argued the rule is vulnerable for a number of reasons, including an "unequivocal rejection" of the legal foundation for the rule in August by the US District Court of the Southern District of New York.
The regulation is scheduled to go into effect 30 days after publication in the Federal Register, according to FWS.
