Great Day for Birds: Birds Now Have a Fighting Chance!

The President’s Hoot
by Richard H. Baker, Ph.D.
September 2020

“It is not only a sin to kill a mockingbird, it is also a crime.” were U.S. District Court Judge Valerie Caproni’s first words on August 11, 2020 when she ruled in a case National Audubon in 2018 followed by other conservation groups and eight states filed lawsuits against the U.S. Department of Interior at the Administration’s direction for stripping away the protections of the Migratory Bird Treaty Act (MBTA).  

Congress passed the MBTA in 1918 in response to the extinction or near extinction of 1,000 bird species, many of which were hunted either for sport or for their feathers.  These kinds of deaths are called “incidental takes,” that is, deaths that occur due to activities that are otherwise lawful. These protections have helped to save numerous species, like the Snowy Egret, Bald Eagle, and Whooping Crane. Even today, Painted Buntings are caged for sale illegally.

But birds need protection even more today. Annually, powerlines kill up to 64 million birds, communication towers up to 7 million, and uncovered oil-waste pits, 500,000 to 1 million birds. Wind turbine data are harder to come by and more controversial, but kill fewer birds, around 234,000. A report in Science documented that North America has lost three billion birds (1 in 4 individuals) since 1970; an Audubon study predicts 66% of North America’s birds are threatened by climate change. 

A number of companies (including the fossil-fuel and electric utility sectors) working with conservation groups and wildlife agencies have developed and often implemented practices to protect birds, many of which are simple and cheap.

Birds provide humans with tremendous benefits and are indicators as to how the world is faring. They reduce agricultural pests, pollinate crops, support healthy ecosystems, and support our $100 billion tourism economy with 860,000 bird-related jobs.  More people are engaged in birdwatching and bird photography than golf.  Birdwatchers spend money for travel, books, equipment, and bird seed. 

Under the Trump administration’s new interpretation – overturning decades of bipartisan precedent – 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.  Companies get a free pass for bird deaths from these industrial hazards. This prevents the enforcement of all “incidental take,” removing incentives for companies to adopt practices that protect birds from threats and eliminates penalties for companies that kill substantial numbers of birds from large oil spills.

This law has provided common-sense accountability after oil spills like the 2010 Deepwater Horizon, in which BP paid a $100 million MBTA fine for an estimated 1-million bird deaths, and they are still cleaning it up. Not all birds died during the actual event but succumbed later.  Under Pres Trump’s policy, oil companies would have been off the hook for any bird deaths.

In addition, in 2018, the president had already signed an executive order rolling back protections of both the Endangered Species Act and the National Environmental Policy Act (which allowed public input on the environmental impact of federal projects).  Right now, they are proposing a new definition of critical habitat, which is a departure from every past administration. Our voices have been stifled.

Many corporations, through their influence in Congress and the Administration, are controlling our environment, politics, and our future. In January 2020, the U.S. House introduced H.R.5552 to prohibit the incidental taking (e.g. capturing or killing) of migratory birds by commercial activities unless the activity is authorized under a permit or is identified as posing de minimis risk to migratory birds at a time when our birds are facing a crisis.Give birds a fighting chance, write your congressional officials and insist they bring up for a vote and pass Bill H.R.5552 and stop relaxing Critical Habitat.

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