By Sara Amundson and Kitty Block
North American bird populations have declined by three billion birds since 1970, which is just one of the reasons why the Migratory Bird Treaty Act has been such an important source of protection for birds for decades. So, it felt like a terrible threat when the U.S. Fish and Wildlife Service, during the last days of the previous administration, weakened the Act so that it would exempt industries from being prosecuted or penalized if their actions resulted in migratory bird deaths.
Thankfully, this week, the Biden administration righted this terrible wrong by restoring the Migratory Bird Treaty Act’s authority over businesses responsible for incidental deaths of migratory birds caused as an indirect result of their operations. Consequently, businesses once again have a legal incentive to take actions to prevent such deaths, such as covering oil waste pits to prevent birds from mistaking them as ponds or marking power transmission lines to prevent birds from flying into them.
This victory ends what was a dangerous concession to the private sector that would cause birds suffering and cost them their lives. The FWS will resume enforcing the Migratory Bird Treaty Act as it had for decades previously, prohibiting incidental and purposeful killings alike. Underscoring the point, the FWS also issued an order providing instruction to its staff about implementing and enforcing the Migratory Bird Treaty Act.
The FWS went further in its efforts to encourage better protections, too, and announced it is seeking input to develop regulations concerning the incidental killing of migratory birds. This is expected to pave the way for a permitting program that will more actively engage businesses in migratory bird protection at all stages of their operations. Such a permitting program will further the development and adoption of best practices and technologies to prevent bird deaths.
The Migratory Bird Treaty Act was originally designed to combat threats associated with the hunting of migratory birds in the late 19th and early 20th centuries, but today’s world poses an altogether different set of hazards. The Act cannot address all the dangers to bird life, including climate change, loss of vital wetlands or overdevelopment. That’s why it’s critical that the statute maintain its authority over the everyday practices of industrial actors like energy companies, so that they internalize and implement operational strategies that better protect animals and nature. As these businesses become more engaged partners, they’ll help raise the bar for all of us in our efforts to design, build and manage infrastructure that minimizes harm to animals and the environment. The more our planning and design of communities, structures and landscapes takes animals and nature into account, the better off we’ll all be.
Stronger enforcement of the Migratory Bird Treaty Act is also essential to the restoration of waterways, wetlands and other environments birds inhabit. Following the death of more than one million birds after the BP Deepwater Horizon oil spill in 2010, BP paid $100 million in fines, which went to environmental remediation and improvement. The recent California oil spill has already produced a terrible impact on birds, and as always raises the question of how society will pay for the restoration of their habitat.
It’s estimated that industry sources kill an average of 709 million birds each year, and up to 1.1 billion. Oil pits alone kill up to one million birds yearly. This mortality poses a significant challenge to the survival of bird populations, especially when combined with the myriad other threats to birds. For instance, roughly 600 million birds die each year in collisions with buildings, and climate change threatens two-thirds of U.S. birds.
The restoration of the Migratory Bird Treaty Act’s incidental killing protections is welcome news, and we will urge the FWS to see the permitting program through to realization. We’re also pressing Congress to pass the Migratory Bird Protection Act—H.R. 4833, which is led by Reps. Alan Lowenthal, D-CA, and Brian Fitzpatrick, R-PA—intended to safeguard the Migratory Bird Treaty Act and to develop a permit program to ensure we keep building a world that’s safer for our fellow creatures.
Kitty Block is President and CEO of the Humane Society of the United States.