The Trump administration has a strong ideological opposition to regulations and to any sort of environmental protection. This near obsession has put the administration in opposition to every basic environmental law Americans have developed over the last century. Even the Migratory Bird Treaty Act that seems so essential, so beyond any question as a good thing for everyone and everything has been attacked by the oil funded ideologues of the Trump Interior Department. The good news: they keep losing in court!
Environmentalists were dumbfounded when the Trump team gutted the Migratory Bird Treaty Act in 2017. Naturally they don’t have the legal authority to repeal the act itself, so they rewrote regulations to make the very narrowly focused. They wanted the oil industry (in particular) to be able to kill any and all birds they wanted with their various facilities. Does the public support this approach?
The executive branch writes regulations to implement laws passed by Congress according to the Administrative Procedures Act. Shoddy legal work by the Trump people once again led to their defeat in the courts today. According to the Natural Resources Defense Council, one of the leading conservation groups in the US, has had a 90% success rate in its lawsuits against the Trump deregulation efforts. Why? Extreme Trump ideology does not square with legal precedent or the letter of the law.
The Migratory Bird Treaty Act (MBTA) was passed in 1918 and became an international treaty when the Soviet Union, Canada, Mexico and the UK joined in. The law set out to protect birds that cross international boundaries, as most do, from human destruction. The law targeted the “incidental taking” (killing) of birds either intentionally or unintentionally.
The Trump folks rewrote the regulations to exempt unintentional bird killing from the law. They argued that only people intentionally killing birds should be liable under the statute. Thus, according to their interpretation, industry could leave toxic ponds open to water birds, or pesticides that kill birds on farms would be okay, or destruction of riparian areas by cattle ranchers that endanger hundreds of bird species would be fine. The United States District Court for the Southern District of New York disagrees.
The US Fish and Wildlife Service enforces the MBTA. They have used various tactics to protect birds over the last century. They tried to get industry to voluntarily protect birds from oil pools or powerlines or oil spills at sea. That didn’t work so they began to fine industry for killing birds. Industry was unhappy and the Trump people were only too happy to try to remove legal barriers to killing birds by various industry.
Interestingly, the opinion advanced by the Trump Interior Department was written by Daniel Jorjani, a veteran of the W. Bush administration who is Solicitor of the Department of the Interior supervising 370 lawyers. He was barely confirmed by the Senate in 2019 along a mostly party line vote.
Disputing the Trump/Jorjani opinion, the Federal Judge Valarie Caproni wrote: “Further, the Jorjani Opinion’s interpretation runs counter to the purpose of the MBTA to protect migratory bird populations. Despite strong textual support for that purpose, the (Jorjani) Opinion freezes the MBTA in time as a hunting-regulation statute, preventing it from addressing modern threats to migrating bird populations.” The MBTA focused on hunting back in the 1920s.
The court vacated the Trump regulations under the MBTA and sent the Trump Interior Department back to their drawing boards. The regulations in place at the end of the Obama administration are in place again. We’ll see if the oil industry pressures Trump to appeal the decision before the administration runs out of time.
