Biden Team Tosses Trump-Era Opinion That Gave Industry A Free Pass To Kill Birds

The Biden administration on Monday scrapped a controversial Trump-era legal opinion that gutted protections for hundreds of species of migratory birds. 

In December 2017, Daniel Jorjani, then the top lawyer at the Department of the Interior and a former longtime adviser to the fossil fuel mogul Koch brothers, issued an interpretation of the 1918 Migratory Bird Treaty Act (MBTA) that effectively legalized all unintentional migratory bird deaths, including those caused by chemical spills, oil and gas operations, power lines and wind turbines.

Jorjani argued that the law was only meant to prohibit the intentional hunting, capturing or killing of bird species, and that as long as a company or individual does not mean to kill birds, they are protected from prosecution. 

The move broke from decades of legal precedent, opened the door for gross negligence and dropped incentives for the industry to proactively mitigate often-foreseeable bird deaths, as HuffPost previously reported. Unsurprisingly, investigations into MBTA-protected bird deaths plummeted.

In a statement Monday, an Interior Department spokesperson said the Trump administration’s rollback “allowed industry to kill birds with impunity.”

“​The reasoning and basis behind that M-Opinion were soundly rejected in federal court,” the spokesperson said, referring to a federal judge’s ruling last year that overturned the rollback. 

Despite last year’s ruling, the previous administration moved to cement the Jorjani opinion in a regulation that was finalized in former President Donald Trump’s final days in office. The Biden administration, however, delayed the rule from taking effect last month, opening it back up to public comment. And the Interior spokesperson said Monday that the department will issue a new proposal “in the coming days” to revoke the Trump rule altogether. 

“The Department will also reconsider its interpretation of the MBTA to develop common sense standards that can protect migratory birds and provide certainty to industry,” the spokesperson said. 

The Trump administration’s priority was no secret. Aurelia Skipwith, then the director of the Fish and Wildlife Service, said a main goal of the final rule was to ensure private industry can “operate without the fear and uncertainty that the unintentional consequences of their actions will be prosecuted.” And in its own environmental assessment of the rule, the Fish and Wildlife Service, which administers and enforces the MBTA, acknowledged that the rollback would result in more bird deaths and fewer entities implementing best practices to avoid killing feathered species. 

Under the 100-year-old conservation law, it is illegal to pursue, hunt, capture, kill or possess migratory birds or their parts without proper permits. And since the 1970s, the federal government has occasionally prosecuted timber, fossil fuel and mining companies for unintentional but often avoidable bird deaths caused by industrial activity.