US scraps legal protections for migratory birds

President Donald Trump's administration has finalized a rule that will allow oil companies, wind farm owners and other industries to kill an unlimited number of migratory birds without facing any federal penalties.

The new rule, published today, would re-interpret the Migratory Bird Treaty Act of 1918 so that the government could only seek penalties for the illegal hunting of birds, rather than unintentional deaths from industrial activity. The change will save oil producers and other industries money by allowing them to abandon best practices to avoid bird deaths, such as covering open-air oil pits with nets, the US Fish and Wildlife Service said in a study published in November.

The rule is one of the last industry-friendly changes to environmental laws the Trump administration is pushing through in its last weeks in office. If the new policy had been in place in 2010, BP could have avoided paying $100mn in fines for the large numbers of birds killed in the wake of the the Deepwater Horizon oil spill.

Oil producers feel they have been unfairly targeted under the law, since most migratory bird deaths are caused by buildings and electrical lines. Power lines kill more than 31mn birds each year, while oil pits kill 750,000 and wind turbines kill 230,000. Wildlife officials only investigate about 57 cases each year and prosecute only some of those, according to federal data, typically in cases where birds are killed multiple times at the same location.

The final rule will not go into effect for 30 days, well after president-elect Joe Biden is sworn into office on 20 January. Biden last month vowed to halt or delay "midnight regulations" that have not already taken effect. That would offer a chance for the Biden administration to start legal efforts to stop the regulatory change from taking effect.

A federal judge last year already threw out the Trump administration's first attempt to re-interpret the Migratory Bird Treaty Act, after finding there was "nothing" in the text of the law to suggest the Trump administration's new interpretation was correct. That could offer grounds for activists to challenge the rule in court. The US Congress could also vote to scrap the rule, under a law named the Congressional Review Act, if there is support from a majority of members in the US Senate and the US House of Representatives.

By Chris Knight