The Trump administration last month proposed to narrow the scope of the Migratory Bird Treaty Act. That could have profound impacts on how industry players approach development in Alaska.
Emperor geese are mainly found in Alaska, migrating from Kodiak and the Aleutians north, towards the Bering Sea, Savoonga and Gambell.
The population dropped drastically in the 1960s and 70s. It has started to tick back up, but it's taken much longer than biologists hoped for. Their flocks declined almost 70% over a period of 20 years, from the mid-1960s to the mid-80s. Scientists don’t know what caused the decline, but some think that part of the reason was oil pollution in wintering areas.
For more than 100 years, the Migratory Bird Treaty Act has protected such populations. Now, the Trump administration is proposing to reduce the law’s reach in an effort to remove red tape for developers. If the U.S. Fish and Wildlife Service adopts the changes, it would codify a 2017 legal opinion from the Department of Interior.
“So it’s really gonna … the metaphor is ‘clip the wings’ of the Migratory Bird Treaty Act and really roll back a lot of the good work that has been done and could be done to avoid senseless bird deaths," said Susan Culliney, the policy director for Audubon Alaska.
Congress passed the Migratory Bird Treaty Act in 1918. It was one of the first environmental laws in the country, and it protects more than 1,000 species of migratory birds, including many in Alaska.
Part of what spurred lawmakers to pass the treaty had to do with fashion — specifically, hats. In the late 19th and early 20th century, feathers in women’s hats were so popular that certain birds became scarce. It prohibits the pursuing, hunting, possessing or killing birds, or their parts, without the required permits.
“It also includes accidental actions, and those are called incidental take,” Culliney said.
Incidental take is when birds die due to certain aspects of a project, or because of an individual action that isn’t meant to kill birds, but results in bird deaths.
The Migratory Bird Act required companies to take steps to prevent those incidental deaths. The Trump administration’s rollback of the plan would lift those requirements, giving industry players much more leeway.
The 1989 Exxon Valdez oil spill is perhaps the most prominent example of a company’s mistake severely damaging an ecosystem in Alaska. On March 24 of that year, a tanker hit a reef, tearing the hull and pouring 11 million gallons of oil into Prince William Sound. That spill killed an estimated 250,000 birds. Exxon was prosecuted under several environmental laws following the spill, including the Migratory Bird Act, which resulted in a $125 million fine.
“And that was part of the payments that then went into helping to restore the habitat that was in the Prince William Sound that was so heavily impacted," Culliney said. "So it’s not nothing, and it’s important to keep these options on the books. Birds are experiencing a lot of pressure these days.”
In a 2018 lawsuit, several conservation groups said that a broader interpretation of the law allowed for companies like Exxon to be held accountable for spills. Culliney said that Exxon’s spill would likely not have been liable under the changes unless it could be proven that the spill was specifically aimed at killing birds.
The agency enforcing the law is the U.S. Fish and Wildlife Service. Jerome Ford, the assistant director for the Migratory Birds Program, said that other laws, like the Endangered Species Act, would still hold companies accountable in case of accidents like oil spills.
“Those things would kick in to take care of the damages to birds. In the past, the MBTA fines was in addition to that,” he said.
In proposing the changes, the Fish and Wildlife Service says the law is meant to "only criminalize actions that are specifically directed at migratory birds, their nests, or their eggs." According to the agency, the law’s wording does not allow room to prosecute actions that are not aimed specifically at harming birds.
Governor Mike Dunleavy agrees. “Advocacy groups have spent decades twisting and contorting a clear law through regulatory overreach," he said in a press release from Fish and Wildlife. "This proposed rule will restore logic and rationality to an important and successful environmental law.”
According to Ford, the changes were aimed at clearing up “ambiguity” in the law for companies that felt they were being unfairly prosecuted for incidental bird deaths. Ford said he didn’t know how the changes would impact bird populations.
“We’re hopeful that people will be incentivized to do the right things for birds and bird conservation," he said. "But again, we won’t really know until we get the comments back here after the 19th.”
That’s March 19, when the public comment period on the proposed changes closes.
Ford said that in the past, Fish and Wildlife has worked with oil and gas companies to promote best environmental practices, for example by omitting open tailings and oil pits and using closed tanks instead. But even if the agency is encouraging safer operations, companies wouldn’t necessarily be incentivized to follow those practices.
Comments on the proposed changes can be made online by searching for Docket No. FWS-HQ-MB-2018-0090.
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