Legislation meant to restore federal protections for migratory birds that have been rolled back by the Trump administration passed out of the U.S. House Natural Resources Committee this week on a party-line vote, 20-14.
Impetus for House Resolution 5552 — the Migratory Bird Protection Act — came from a 2017 Interior Department memo crafted by Daniel Jorjani, who in 2019 received Senate confirmation as solicitor for the department. But at the time, as principal deputy solicitor, Jorjani stated prior interpretation of the Migratory Bird Treaty Act of 1918 was illegal and the federal government could no longer prosecute companies for negligent incidental killing of protected migratory bird species.
The MBTA is considered one of the United State’s fundamental environmental protection laws. U.S. Rep. Alan Lowenthal, D-Calif. and lead sponsor of the bill, said he considered the law’s new interpretation by the U.S. Fish and Wildlife Service was a radical change in policy from how administrations both Democratic and Republican handled implementation over the last century.
“Furthermore, while previous administrations have held companies liable under Migratory Bird Treaty Act, when disasters occur due to negligence like oil spills, this administration has made it clear they will not hold them accountable,” Lowenthal said. “In cases such as the Exxon Valdez, the Deepwater Horizon and other, smaller oil spills, responsible parties in the past were fined, and the funds went toward important habitat restoration efforts in the aftermath of these disasters. A similar incident happening today under the Trump administration policies would not result in a single dollar’s worth of fines under the MBTA.”
Coastal Georgia is a key habitat to a number of migratory bird species, leading the Western Hemisphere Shorebird Reserve Network to name Georgia’s barrier islands in 2018 as a landscape of hemispheric importance. Thousands of oystercatchers, piping plovers, rufa red knots, short-billed dowitchers, whimbrels and others make their home here, at least temporarily, during the year.
“The legislation directs the Fish and Wildlife Service to work with the industries up front to develop general industry-wide permits for incidental take, and develop a system in which companies would pay a mitigation fee, would self-certify that they’re using these best management practices and these companies would not be punished if something happens,” Lowenthal said.
As they did when the bill came up in the House Water, Oceans and Wildlife Subcommittee in June of 2019, Republican members declared their opposition by pointing out bird mortality caused by wind farms, domestic cats and issues alleged by rural electricity providers and Western ranchers.
“I don’t think anybody on this committee is opposed to strong protections for migratory birds — we all agree on that — but we can and we must do that protection without creating new, burdensome permitting regimes and exposing countless businesses to criminal liability,” said U.S. Rep. Mike Johnson, R-La.
He continued, “It’s been discussed ad nauseam that this bill’s applicability is extremely broad, covering any conceivable commercial activity. Make no mistake — violations of the Migratory Bird Treaty Act come with stiff penalties, including fines and even potential jail time. But making the provisions of this bill applicable to virtually any business, I fear we’re inviting a scenario where we must place blind faith in hoped that prosecutorial discretion will prevent government abuse.”
U.S. Rep. Bruce Westerman, R-Ark., said the legislation would create more costs for businesses that they would then pass on to their customers.
“And again, it’s not going to do anything to reduce those incidental takes, from what I read in the bill,” Westerman said. “It singles out five commercial activities, explicitly requiring that DOI issue general permits for those activities, and these commercial activities do not constitute the leading causes of incidental take. And, in my mind, they’re arbitrary at best.”
Defenders of Wildlife, one of the environmental groups advocating for passage of the bill, said it was time for action because the Trump administration is no longer protecting migratory bird species like it should.
“The Trump administration has crippled the Migratory Bird Treaty Act by declaring that it no longer protects migratory birds from unconstrained incidental take by oil and gas developers and other industries,” said Robert Dewey, vice president for government relations for Defenders of Wildlife. “Bird champions, including Reps. Lowenthal and 18 bipartisan original co-sponsors, have responded with the Migratory Bird Protection Act to protect birds from industrial threats and provide regulatory certainty for industry if they follow best management practices to protect birds.”
Of the two Republican co-sponsors, one — U.S. Rep. Jeff Van Drew, R-N.J., recently switched parties to the GOP — and the other, U.S. Rep. Francis Rooney, R-Fla., frequently votes with Democrats on environmental legislation.
The bill moves on to the full House. Should the House approve H.R. 5552, it would likely not receive a positive reception in the Republican-controlled Senate.