Eleven State Attorneys General Slam Proposal to Roll Back Protections for Migratory Birds

Washington, D.C. — New York Attorney General Letitia James led a coalition of 11 state attorneys general in submitting comments yesterday urging the U.S. Fish and Wildlife Service to withdraw a proposed rule that would roll back protections for migratory birds under the Migratory Bird Treaty Act (MBTA). The proposed rule would codify agency guidance issued in April 2018 based on an unlawful Interior Department Solicitor’s Opinion that reversed the Service’s long-standing position that the MBTA prohibits any activity that results in the death of migratory birds, whether intentional or incidental.

Enacted in 1918, the MBTA is one of the nation’s first conservation statutes, and provides protections for more than 1,000 bird species across all 50 states. The MBTA prohibits the unauthorized pursuing, hunting, taking, capturing, or killing of any migratory birds “by any means or in any manner.” As the AGs note in their comments, for nearly 40 years the U.S. Fish and Wildlife Service has interpreted the MBTA to apply to activities that result in bird deaths “whether those deaths were the purpose of the activity or incidental to otherwise lawful activity” — a position “compelled by the MBTA’s text” and supported by its legislative history and extensive case law.

“The administration’s proposed rule would absolve companies from stopping or mitigating practices that they know are killing migratory birds by simply asserting that they are not motivated by a desire to bring birds ‘under human control.’ As the attorneys general have made abundantly clear, the legal gymnastics required to reach this conclusion will not stand — the statute couldn’t be clearer in prohibiting companies from ‘taking’ migratory birds ‘at any time, by any means, or in any manner.’” said David J. Hayes, Executive Director of the State Energy & Environmental Impact Center. “The proposed rule’s obvious, pernicious purpose is to allow the minority of companies in the wind energy, electric transmission and oil and gas industries who are unwilling to take reasonable steps to protect migratory birds to kill them with abandon.”

The attorneys general also submitted a declaration by Gary G. Mowad, former Deputy Chief of the U.S. Fish and Wildlife Service’s Office of Law Enforcement, in support of their comments. Mr. Mowad warns that the Service’s reversal “is causing and will continue to result in the deaths of large numbers of migratory birds that could have easily been avoided.” Mr. Mowad emphasizes that the Service’s enforcement authority under the MBTA — even when used “in a reasonable and targeted manner” with prosecution reserved for “rare cases” involving particularly uncooperative parties — serves as a powerful incentive for industries to take steps to reduce the threat that their activities pose to migratory birds. Mr. Mowad cautions that if the proposed rule is finalized and the Service’s enforcement authority is curtailed, “industry actors will lack the incentive they previously had to implement measures to reduce their incidental take of migratory birds.” Such an outcome, Mr. Mowad warns, “will be devastating to efforts to protect migratory bird populations from incidental deaths and injuries that foreseeably result from major industrial activities.”

The attorneys general emphasize that birdwatching is a popular recreational activity among millions of their states’ residents and generates billions of dollars in economic activity every year — all of which would be in jeopardy under the proposed rule’s misinterpretation of the MBTA. The AGs also note that birds protected under the MBTA provide valuable ecological services, including “insect and rodent control, pollination, and seed dispersal.”

The attorneys general of California, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon and Washington joined New York in filing the comments. As the comments note, state attorneys general have challenged the Solicitor’s Opinion underlying this proposed rule in the Southern District of New York. In January, they filed a motion for summary judgment in the case.

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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.