Real Birds: Audubon Sues the Federal Government

A coalition of national environmental groups, including the National Audubon Society, the American Bird Conservancy, Center for Biological Diversity, Defenders of Wildlife, National Wildlife Federation, and the Natural Resources Defense Council filed litigation, National Audubon Society v. Department of the Interior, in the Southern District of New York challenging the Trump Administration’s move to eliminate longstanding protections for waterfowl, raptors, and songbirds under the Migratory Bird Treaty Act (MBTA).

In a legal opinion issued December 2017, the Trump administration abruptly reversed decades of government policy and practice—by both Democratic and Republican administrations—on the implementation and enforcement of the MBTA.

The Act's prohibition on the killing or "taking" of migratory birds has long been understood to extend to incidental take from industrial activities—meaning unintentional but predictable and avoidable killing. Under the Trump administration's revised interpretation, the MBTA’s protections will apply only to activities that purposefully kill birds. Any “incidental” take—no matter how inevitable or devastating the impact on birds—is now immune from enforcement under the law.

The risk of liability under the MBTA has long provided the oil and gas industry, wind energy development companies, and power transmission line operators with an incentive to work with the U.S. Fish and Wildlife Service to minimize bird deaths. For example, in an effort to protect migratory birds and bats and avoid potential MBTA liability, the wind industry, conservation groups, and the U.S. Fish and Wildlife Service worked to develop comprehensive guidelines aimed to ensure best practices for siting and developing wind farms. The Trump administration’s new policy eliminates this incentive for industries and individuals to minimize and mitigate foreseeable impacts of their activities on migratory birds, putting already-declining populations of our nation’s songbirds and other migratory birds at risk.

The MBTA also protects birds from fossil fuel development. Oil pits kill hundreds of thousands of birds – if incidental take liability is eliminated, industry need no longer take measures to protect birds from these hazards. In addition, when the 2010 BP Deepwater Horizon disaster spilled more than 210 million gallons of oil in the Gulf of Mexico more than 1 million birds were killed in the four years following the blowout. BP paid $100 million-dollars in fines under the MBTA that supported wetland and migratory bird conservation. The new interpretation would bar the federal government from seeking such mitigation under the MBTA for devastating oil spills in the future.

The National Audubon Society, American Bird Conservancy, Center for Biological Diversity and Defenders of Wildlife are being represented in the litigation by the public-interest law firm of Meyer Glitzenstein & Eubanks LLP.

“One of the first conservation laws, the MBTA sparked 100 years of conservation leadership in this country,” said Sarah Greenberger senior vice president of conservation policy for the National Audubon Society. “It defies all facts for the Department of the Interior to suggest that this law is somehow broken when we have a century of evidence that says otherwise.”

For more details, read our press release.