Restoring the Rule of Law While Protecting Bird Species

December 22, 2017

DENVERWestern Energy Alliance applauded the Department of the Interior’s solicitor’s letter released today overturning a last-minute maneuver by the Obama Administration just ten days before President Trump took office. The solicitor’s opinion entitled rightly restores the rule of law as passed by Congress in the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA) to Interior Department protections for bird species.

“While not as high profile as Sally Yates, Interior Department officials also attempted to extend Obama-era executive actions far beyond the rule of law as a means of tying President Trump’s hands,” said Kathleen Sgamma, president of Western Energy Alliance. “Today’s solicitor’s opinion addresses just such an example, and restores agency actions to the rule of law as of January 9, 2017, the day before the opinion was surreptitiously issued.

“During the Obama Administration, seven oil and natural gas companies were prosecuted for killing 28 birds at the same time that wind energy companies were allowed to kill thousands of birds, including bald and golden eagles. Today’s solicitor’s opinion returns the rule of law and will help prevent the disparate treatment of industries and the politically motivated use the MBTA as a weapon.

“The MBTA was enacted by Congress in 1918 as a criminal statute to stop the hunting and poaching of migratory birds. It was not meant to address activities that do not directly kill birds but just carry unintended effects, such as noise or habitat impacts. The Endangered Species Act, on the other hand, does disallow activities that affect birds, but only those listed as endangered or threatened. The Obama Administration conflated the two laws, and issued an overreaching order that these other impacts, known as incidental take, carry the threat of criminal enforcement also for species that are not listed.

“Like many other laws, the MBTA was abused by the Obama Administration, in this case to apply Endangered Species Act-type liability for impacts to birds that are not listed as threatened or endangered. Those restrictions that reduce jobs and economic opportunity are justified when birds are truly threatened or endangered and any impact can threaten their survival, but not for species that are not.

“Whether or not species are covered by ESA or MBTA, oil and natural gas companies protect birds every day. Improved industry practices and technological innovation, combined with specific conservation measures mean that the wildly inflated numbers of bird deaths used by environmental groups just are not true,” concluded Sgamma.