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News & Press: Legislative

August 2020 Legislative Update

Friday, August 14, 2020  

On August 13th a federal court decision upheld the most effective bird conservation law on the books--the Migratory Bird Treaty Act. “This is a huge victory for birds and it comes at a critical time - science tells us that we’ve lost 3 billion birds in less than a human lifetime and that two-thirds of North American birds are at risk of extinction due to climate change,” said Sarah Greenberger, Interim Chief Conservation Officer for the National Audubon Society. 

United States District Court Judge Valerie Caproni ruled that the legal opinion which serves as the basis for rollback of the Migratory Bird Treaty Act does not align with the intent and language of the 100-year-old law. In her ruling, Judge Caproni found that the policy “runs counter to the purpose of the MBTA to protect migratory bird populations” and is “contrary to the plain meaning of the MBTA.” The decision comes as a result of a series of lawsuits brought in 2018 by Audubon, several other conservation groups, and eight states.

The administration is nearing the end of a regulatory process to make the legal opinion ruled on permanent in the form of regulation. The changes say that the MBTA’s protections apply only to activities that purposefully kill birds, exempting all industrial hazards from enforcement. Any “incidental” death—no matter how inevitable, avoidable or devastating to birds—becomes immune from enforcement under the law.

Judge Caproni’s response to this opinion: “There is nothing in the text of the MBTA that suggests that in order to fall within its prohibition, activity must be directed specifically at birds. Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only “some” kills are prohibited.”

“For decades this law has been a proven incentive to remind companies to do the right thing for wildlife,” added Greenberger.

The Migratory Bird Treaty Act requires companies to do things like cover oil waste pits and implement best practices for power lines to reduce bird electrocutions and collisions, among other actions. If the administration’s legal opinion had been in place in 2010 for example, BP would have faced no consequences under the MBTA for the more than one million birds killed in the Deepwater Horizon oil spill. 

This reality is underscored by Judge Caproni’s own words from the opening of the ruling: “It is not only a sin to kill a mockingbird, it is also a crime. That has been the letter of the law for the past century. But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”

Excerpts taken from the National Audubon Society webpage. For the full story go to this link.


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