8 AGs Sue Interior Over “Arbitrary and Capricious” Opinion Endangering Millions of Migratory Birds

Interior’s new position on MBTA “contravenes the Act’s plain text and clear purpose.”

FOR IMMEDIATE RELEASE
September 6, 2018
Contact: Christopher Gray
Christopher.Gray@nyu.edu
(929)-333-6213

Washington, D.C.New York Attorney General Barbara Underwood is leading a coalition of eight attorneys general in suing the Interior Department, the U.S. Fish and Wildlife Service and Interior’s Acting-Solicitor Daniel Jorjani over the defendants’ decision to depart from decades of regulatory precedent related to enforcement of the Migratory Bird Treaty Act (MBTA).

The AGs brought their lawsuit in the U.S. District Court for the Southern District of New York and are asking the court to vacate what is known as the Jorjani Opinion, a December 2017 Solicitor’s Opinion limiting corporate liability for bird deaths caused by industrial activity.

According to the Fish and Wildlife Service, oil pits, pesticides, poisons, electrical lines, communication towers and wind turbines kill more than 100 million birds each year. The Fish and Wildlife Service has relied on its authority under the MBTA to ensure that industries are taking reasonable and effective steps to mitigate harm to important bird species.

“In yet another giveaway to special interests at the expense of our states, the Trump administration has gutted the Migratory Bird Treaty Act – eliminating longstanding prohibitions on injuring or killing over 300 species of migratory birds that provide critical ecological, scientific, and economic value to New York,” said Attorney General Underwood. “Our coalition will fight to reverse this reckless and illegal action – just as we have successfully beaten back so many of the Trump administration’s destructive policies.”

In their complaint, the AGs argue that the Trump Administration’s interpretation of the MBTA is inconsistent with the law’s intent, and violates the Administrative Procedure Act (APA). State AGs have been successful in blocking enforcement of many of the Administration’s previous attempts to roll back environmental regulations because they violated the APA and other governing laws. In August, two separate coalitions of AGs won major court decisions forcing the EPA to reinstate life-saving safety regulations in industrial chemical facilities, and forcing the Agency to reinstate a ban on the dangerous pesticide chlorpyrifos.

“The Trump Administration has made numerous attempts to overturn well-established regulatory precedent through novel and illegitimate legal reasoning like what has been put forth on MBTA, but these efforts have a losing record in court,” said David J. Hayes, Executive Director of the State Energy and Environmental Impact Center. “State attorneys general are not going to allow the Administration to nullify a landmark, 100-year-old conservation law through executive fiat. They will continue to press their legal advantage.”

Attorneys General of California, Illinois, Maryland, Massachusetts, New Jersey, New Mexico and Oregon joined New York in filing the lawsuit.

BACKGROUND

The century-old MBTA was first enacted in 1918 and protects 1,027 bird species, 92 of which are listed as threatened or endangered by the Fish and Wildlife Service. The MBTA is credited with saving multiple bird species like the Snowy Egret, the Wood Duck and Sandhill Crane from extinction.

Section 703 of the MBTA states that, absent a hunting permit, it is unlawful “by any means or in any manner” to “pursue, hunt, take, capture, [or] kill” any migratory bird. For decades the Fish and Wildlife Service has interpreted the “take” component of MBTA as enabling the agency to identify reasonable and effective measures that companies in the oil, gas, timber, mining and chemical industries can undertake to avoid incidental take and harm to migratory birds, so as to minimize threats to avian life. While these activities are not undertaken with the intent to take or harm birds, they nevertheless do.

Administrations of both parties have interpreted the MBTA as imposing strict liability on defendants for violating the Act’s prohibitions, but have exercised discretion in pursuing MBTA enforcement actions. Instead, the Fish and Wildlife Service has primarily used its authority under the act to work with private companies to make oil pits, transmission lines, wind turbines and other industrial sites and activities safer for birds.

The Jorjani Opinion is considered a radical reinterpretation of the MBTA, and has been the subject of harsh criticism from a number of leading experts. Its many critics argue that the Trump Administration is not actually removing an “unnecessary regulatory burden,” but is instead removing a tool that regulators have relied upon for years to incentivize industry to protect birds. The Jorjani Opinion also removes legal responsibility for bird deaths resulting from environmental disasters caused by commercial activity, such as oil spills or leaks from toxic waste sites.

ABOUT THE STATE ENERGY & ENVIRONMENTAL IMPACT CENTER: The State Energy & Environmental Impact Center is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advance clean energy, climate change, and environmental values and protections. It was launched in August 2017 with support from Bloomberg Philanthropies. For more information, visit http://www.law.nyu.edu/centers/state-impact.