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by Molly Kordas, Staff Attorney
On February 3, 2020, the Trump Administration proposed sweeping rollbacks of critical protections for migratory birds. The proposal bars application of the Migratory Bird Treaty Act to “incidental,” or unintentional, killings of migratory birds. The administration also manipulated the public process, allowing concerned members of the public only 45 days to comment on a highly controversial policy that the Department of Interior has already been enforcing for more than two years. If continued, this major shift in federal policy will negatively impact nearly every bird species, including globally significant birds, particularly in the Chicagoland region which sits right in the middle of the Mississippi Flyway.
What is the Migratory Bird Treaty Act?
The Migratory Bird Treaty Act (MBTA) was passed by Congress in 1918 to enact the United States’ obligations under an international treaty with Canada to protect migratory birds that were over-hunted and killed for commercial profit. The MBTA made it a federal crime to pursue, hunt, take, capture, or kill, “by any means, or in any manner,” even one migratory bird. The law, and the treaty it supports, represented one of the first international environmental agreements, proving to the world that nations could work together to solve common environmental challenges. Reversing course after nearly a century of working to protect migratory birds, the Department of Interior is now defying the entire purpose of the MBTA to apply the law only to intentional killings of migratory bird species.
So what does this rollback mean?
The MBTA today protects more than 1,000 kinds of birds, ranging from the most common of species, such as the Northern Cardinal and House Sparrow, to the rarest birds in the world, like Snowy Egrets, Red-tailed Hawks, Great Blue Herons, Whooping Cranes, and Spotted Owls. The Trump Administration is twisting the law to allow these birds to be harmed and killed so long as the guilty actor can say that it was not their intent to hurt or kill migratory birds.
For example, if a bird is killed because simple preventative measures were not taken to protect birds from electrical lines, the company would not be held responsible because the purpose of the electrical lines is not to kill migratory birds. It is hard to imagine what commercial or industrial business would have as its purpose “to kill migratory birds.” In fact, unintentional collisions with electrical lines, communications towers, wind turbines, and building glass are responsible for a combined 335 million bird deaths per year.
The MBTA has often been used to hold polluters and bad actors accountable where there are unintentional gaps in environmental laws and regulations. British Petroleum, for example, was forced to pay $100 million for killing at least 100 million birds in the 2010 Deepwater Horizon oil spill, thanks to the MBTA. As the Trump Administration pointed out, of the 1,027 species protected, only about “8% are either listed . . . as threatened or endangered under the Endangered Species Act and 25% are designated . . . as Birds of Conservation Concern.” This demonstrates exactly how important the MBTA is – without it, most North American species will fly through U.S. territories completely unprotected.
This is also a rare situation in which we do not need to look into the future to see how this regulatory rollback will play out. Because the Department of Interior has been acting on this new policy over the last two years before even requesting input from the public, we are already seeing the catastrophic effect on bird populations. Former U.S. Fish and Wildlife employees have said that they no longer “conduct ‘flyovers of oil and gas production areas to identify potential threats,’” and in fact are actively prevented from even discussing “’voluntary bird protection measures.’” Despite the USFWS’s previous cooperative relationship with industry, which actually encouraged technological innovation, the Trump Administration is pushing a false narrative that bird protection measures hamper business to promote profit at the expense of the environment and our natural resources.
The damage from stripping migratory bird protections is compounded by rollbacks to critical protections under the Endangered Species Act (ESA) in August of 2019. Changes to the ESA removed blanket protections for threatened species, prevented consideration of threats due to the climate crisis, and allowed federal agencies for the first time to consider the economic impacts of listing species and designating critical habitat. Together, these rollbacks make it harder than ever to protect bird species from manmade threats, many of which simply did not exist when the MBTA was passed.
How can we protect migratory birds?
At a time when North America’s bird population has been reduced by nearly 30 percent, responsible regulation of the threats we pose to migratory birds at all levels of government is now more important than ever. Some of these species are in serious decline and could be gone forever if we don’t reinstate protections under the MBTA. For example, only a little over 800 whooping cranes still exist in the world. Out of the 85 in the eastern U.S. migratory path, a few land and rest in Hackmatack National Wildlife Refuge during their annual voyage. These and other beautiful and iconic species are at much greater risk with this reckless and unlawful narrowing of the MBTA.
Given the combined effect of rollbacks to both the MBTA and ESA, local and state protections will now be necessary to protect migratory birds, grassland birds and their habitat. Supporting bird-friendly policies is critical to protecting regional treasures like Hackmatack National Wildlife Refuge and Midewin National Tallgrass Prairie.
The City of Chicago, recognizing our region’s responsibility in accidental migratory bird deaths, is considering the Bird Friendly Design Ordinance. The ordinance would require new building designs to use better lighting and glass that would limit threats to migratory species and better protect them as they make their way through the Mississippi Flyway. House Bill 4476, which would require bird-safe state buildings was also introduced in the Illinois General Assembly in February of this year.
On the federal level, Congress can also pass both the Bird Safety Building Act (H.R. 919) and amendments to the MBTA (H.R. 5552) to make it absolutely clear that the MBTA applies to both intentional and unintentional killings of migratory birds. Senate Bill 3051/H.R. 925, if passed, would extend the North American Wetlands Conservation Act, guaranteeing $60 million per year for five years to protect critical wetland habitat for migratory birds.
Openlands also works to create and inspire advocates for nature by educating youth about the environment through our Birds in my Neighborhood (BIMN) program. Through the program volunteers utilize protected bird’s nests, feathers, and interpretation to teach grades 3-5 about bird identification, habitat, and diets. In the 2019-20 year alone, there were 77 BIMN classes, totaling 2,000 students. Birds can provide an entryway into a lifelong love and compassion for nature, and often during BIMN lessons, students learn about the MBTA for the first time.
The new MBTA policy has the power to leave a lasting impression; it shows how much of an impact – both negative and positive – humans can have on the well-being of our environment and the animals who inhabit it. Fighting these changes to the MBTA is essential not only for the preservation of birds, but for the education and inspiration of future advocates for nature. The diligent work that went into passing and enforcing the MBTA illustrates the power of the people, and our ability to aid in either the decimation of a species or a tremendous rise in leadership to protect it.
Migratory birds delight us with their beauty and serenade us with their songs, support eco-tourism economies, and benefit the world by eliminating pests, preventing disease, and contributing to increased biodiversity. The latest rollbacks of the MBTA and ESA pose significant threats to these species unless we act now. Please join us in advocating for more bird-friendly policies and other issues by talking to your local officials, and adding your voice to our advocacy efforts to ensure a green, more climate resilient region for us all.