On January 7, 2021, U.S. Fish and Wildlife Service (USFWS) published a final rule limiting the scope of the Migratory Bird Treaty Act (MBTA)’s prohibition on the take of migratory birds. The new rule excludes incidental take, meaning bird mortality that results from an action but is not the purpose of that action.
This rule is the culmination of Trump Administration efforts that began shortly after it took office to reverse prior agency policy and limit the scope of the MBTA. The rule does not take effect until February 6, 2021 and so may be suspended by the incoming Biden Administration.
The MBTA makes it unlawful to “pursue, hunt, take, capture, [or] kill” any migratory bird. A violation of this prohibition is a criminal act. Beginning in the 1970s, USFWS sought to enforce this prohibition against incidental take. Those responsible for activities resulting in bird deaths -- including oil and gas, timber, renewable energy, electric infrastructure and commercial building activities – risked criminal enforcement under the MBTA. However, the courts have split as to whether the MBTA applies to incidental take.
The Obama Administration considered using the regulatory authority granted by the MBTA to establish a permitting program for the incidental take of migratory birds. That effort failed, in part because of the unwieldy nature of a permitting scheme that would apply to more than 1,000 bird species. In the end, the Obama Administration simply issued an Interior Solicitor’s opinion in January 2017 articulating arguments for applying the MBTA to incidental take.
A few weeks later, the incoming Trump Administration suspended that Solicitor’s opinion. It then issued its own opinion on December 22, 2017, concluding that the MBTA does not apply to incidental take. Legal challenges to that new Solicitor’s opinion followed.
On February 3, 2020, USFWS published a proposed rule that would limit the MBTA’s prohibition to actions that are directed at migratory birds and expressly exclude incidental take. It then issued a Draft Environmental Impact Statement (EIS) for the proposed rule on June 5, 2020.
On August 11, 2020, a federal district court ruled that the Trump Administration’s MBTA Solicitor’s opinion was inconsistent with the statute, which the court interpreted as prohibiting incidental take of migratory birds. This ruling came after the close of comments on the proposed MBTA rule and the draft EIS. The Trump Administration appealed that ruling to the Court of Appeals for the Second Circuit and that appeal is still pending.
USFWS provided some explanation for its rejection of the district court’s interpretation in the Final EIS for the proposed rule, which was issued on November 27, 2020. The January 7, 2021, preamble for the final rule provides additional arguments against the district court’s ruling.
If President Trump had been reelected, the fate of this new rule would have been settled in the courts. With the change of administrations, its future is far more uncertain. The effective date of the rule will likely be extended, along with other rules that have not yet taken effect as the Biden Administration begins on January 20. The incoming administration will then have to consider whether to initiate a new rulemaking process to repeal or replace the rule. It also could be struck down by the courts. It also is possible, that Congress could exercise pass a disapproval resolution under the Congressional Review Act to vacate this rule and possibly other rules adopted late in the Trump Administration. However, the Biden Administration has not signaled an intent to overturn rules using Congressional Review Act authority and many think it is unlikely this authority will be widely used.
The next year should provide some clarity on how the Biden Administration will handle the January 7 rulemaking and how it will administer the MBTA. The 117th Congress may introduce legislation that seeks to clarify the scope of the MBTA at the statutory level. Whether or not incidental take of birds will result in criminal risk exposure remains unsettled for the foreseeable future.