The US Fish and Wildlife Service has completed a final rule specifying that the prohibitions on harm to migratory birds under the Migratory Bird Treaty Act apply only to deliberate harm.
The rule will at least temporarily reduce the risk of litigation for oil companies whose oil waste pits can kill birds.
The rule is intended to make it clear that the Fish and Wildlife Service “will not prosecute landowners, industry and other individuals for accidentally killing a migratory bird. This opinion has been adopted by several courts, including the US Court of Appeals for the Fifth Circuit,” said Interior Secretary David Bernhardt in an announcement of the rule.
The final rule is scheduled to be published in the Jan. 7 Federal Register and will take effect 30 days after publication.
The rule codifies a 2017 legal memorandum from the Interior Department solicitor’s office. A federal court in August ruled against that memorandum, but Interior is appealing the ruling (OGJ Online, Aug. 14, 2020). The 2017 memorandum contradicted decades of federal interpretation of the law.
Permitting alternative urged
Whether the rule will survive for long in the Biden administration remains to be seen. In October, 52 members of Congress sent Bernhardt a letter advocating a different approach that presumably could be an option for the next administration.
The letter, led by Rep. Alan Lowenthal (D-Calif.), suggested Interior establish a general permitting framework to encourage the creation and implementation of best management practices by industry.
The letter did not go into details, but members of Congress have discussed the subject over the last few years. A permitting system could protect a company or individual from prosecution so long as a permit was in effect and proper management practices were followed. If a company or person were guilty of gross negligence, that would open the way to prosecution.
The Trump administration rejected that approach as contrary to the law on migratory birds, which in the administration’s interpretation does not prohibit any accidental killing, or “incidental take” in legal jargon.
Impact of rule change blurred
Several factors reduce the impacts of changes to the regulations concerning migratory birds, as far as oil companies are concerned.
For decades, federal officials have exercised considerable prosecutorial discretion, rarely charging oil and gas companies—or electric utilities, or wind farm operators, or other industrial companies—with violations of the Migratory Bird Treaty Act. Instead, the law has served as a legal tool to pressure companies to minimize bird deaths.
The explanatory text with the new rule also notes that 13 states have regulations to require protective measures such as netting or screening of oil pits. The 13 states are Texas, New Mexico, Oklahoma, Arkansas, Nebraska, Colorado, Wyoming, North Dakota, South Dakota, Montana, Utah, California, and Illinois.
Oil pit nets range in cost from about $131,000 to $174,000 per acre. They help prevent birds from becoming mired in oil when they land on an oil pit because it looks like a water pond.
The new rule also does not relieve oil companies from the need to avoid harm—accidental or not—to birds listed as endangered or threatened under the Endangered Species Act.
Recent studies have indicated North American bird populations have gone through significant declines over the past 50 years. In the explanatory text for its new rule, the Fish and Wildlife Service acknowledged those findings but added, “It is also noteworthy that those losses occurred despite the department’s prior interpretation of the MBTA as prohibiting incidental take.”
