Biden administration to restore full scope of migratory bird protections

The Interior Department has rescinded a Trump administration legal opinion which narrowed protections for migratory birds and Interior will revoke a regulatory rule which followed from that legal opinion, according to an Interior spokesperson on the 8^th March.

For oil companies, the Biden administration’s changes will mean companies once again will be at risk of litigation for the accidental deaths of birds in oil waste pits.

Birds especially can die when mired in oil waste pits, which can look like water ponds to a bird. Netting can keep birds out of oil waste pits, and typically no company is charged with a violation of the Migratory Bird Treaty Act if it conscientiously tries to keep waste pits covered with nets.

The current controversy dates back to the Obama administration, which announced charges against some oil companies for the deaths of migratory birds. To oil executives, it looked like politics, the Obama administration going after oil companies but shrugging off the deaths of birds from wind turbines, which are popular among environmental activists.

In 2017, a legal opinion from the Interior Office of the Solicitor concluded that the Migratory Bird Treaty Act was only meant to criminalise deliberate killing of birds, not accidental deaths which are “incidental” to normal work. That was followed by a rulemaking which finally took effect this year on the 8^th March.

New rule coming

But the Interior spokesperson said the 2017 opinion, referred to as the M-Opinion, is now dead.

“The Interior Department rescinded the M-opinion on the Migratory Bird Treaty Act which overturned decades of bipartisan and international consensus and allowed industry to kill birds with impunity,” the spokesperson said.

“In the coming days, Interior will issue a proposed rule to revoke the corresponding rule which is going into effect today,” the spokesperson said.

“The department will also reconsider its interpretation of the MBTA to develop common sense standards which can protect migratory birds and provide certainty to industry,” the spokesperson said. The implication apparently was that standards would, if followed, leave less up to the discretion of prosecutors.

The spokesperson also said the “reasoning and basis behind that M-Opinion were soundly rejected in federal court.”

That was a reference to the ruling in a US district court in August which rejected the 2017 legal reinterpretation of the law.

Source: Oil & Gas Journal