By Jacob Fischler
In July 2011, a pipeline owned by ExxonMobil burst near Laurel, Mont., dumping 42,000 gallons of crude oil into the nearby Yellowstone River.
As federal officials reported the damage for weeks afterward, they found American white pelicans, owls and other bird species covered in oil, injured or dead. ExxonMobil agreed to pay $12 million to Montana and the federal government in response.
Under a rule President Donald Trump’s administration finalized last week, one of the legal tools to penalize companies like Exxon whose actions lead to accidental deaths of migratory birds would be unavailable to regulators and prosecutors.
The rule, set to take effect early next month, codifies a longstanding policy of Trump’s Interior Department: The Migratory Bird Treaty Act cannot be used to prosecute companies whose actions lead to accidental bird deaths.
Instead, the federal government could only pursue legal action if companies intentionally harm migratory birds.
Opponents say the rule undercuts the purpose of the migratory bird law, which has been in effect since 1918, and will have disastrous effects for bird species.
“We know that millions of birds will die,” said Aaron Weiss, deputy director of the conservation group Center for Western Priorities. “And we are already facing an extinction crisis.”
Groups of trumpeter swans, North America’s largest waterfowl that is considered a “species of concern” in Montana and one of the birds protected under the federal migratory bird law, live in areas of southwest Montana year-round, with additional populations in the summer months.
Among the nearly 1,100 species the law protects are the cactus wren, lark bunting and mountain bluebird, the state birds of Arizona, Colorado and Nevada, respectively, and the American three-toed woodpecker, common in Rocky Mountain National Park.
Federal protections are particularly important for migratory species because they live in several different states throughout their lives, giving individual states limited power to effectively protect them.
“Migratory birds are always that reminder that our wildlife does cross state lines,” said Amy Seaman, director of science and policy with Montana Audubon, the state chapter of the national bird conservation group.
The Trump rule is consistent with an interpretation of the migratory bird law U.S. Interior Department Solicitor Daniel H. Jorjani wrote in 2017. U.S. District Judge Valerie E. Caproni overturned that guidance last year in a suit environmental groups brought.
The rule’s effect would not necessarily be felt overnight, but could add up over years, Kit Fischer, a senior program manager with the National Wildlife Federation, said.
“We may not notice it’s gone until we have an incident where somebody can’t be held liable,” Fischer said.
The law was used as part of BP’s settlement for the 2009 Deepwater Horizon spill in the Gulf of Mexico. But more than financial penalties, companies are keen to avoid the “bad headline” that a suit over dead American white pelicans, trumpeter swans and the other birds protected under the migratory bird law would bring, Fischer said.
Without the threat of litigation, oil and gas companies may be less likely to work to prevent migratory bird deaths, he added.
“How long does goodwill last when there’s not regulation behind it?” he asked.
The American Petroleum Institute, an oil and gas industry group, said its members are committed to protecting migratory birds.
“The modernized rule reinforces the original intent of the Migratory Bird Treaty Act and accounts for the fact that the natural gas and oil industry is not a primary threat to bird populations,” API senior policy adviser Amy Emmert said in a written statement. “The Department’s approach provides certainty for responsible property owners, including those who operate oil and natural gas facilities.”
But environmentalists say the rule rolls back key enforcement mechanisms that have aided species, and states have invested in the species’ recovery.
Montana’s reintroduction efforts have been “so crucial” to the recovery of the trumpeter swan, said Seaman.
The Trump rule will be challenged in court by the environmental group Center for Biological Diversity and other groups that challenged Jorjani’s opinion, said Noah Greenwald, who directs the Center for Biological Diversity’s endangered species program.
The Interior Department under President-elect Joe Biden and Secretary-designate Debra A. Haaland could also take steps to reverse the rule, though the policy’s formalization as a new rule instead of guidance from Interior’s solicitor makes that process more difficult.
Conservation groups see Biden as on their side of this issue, and the transition has said Biden will seek to overturn last-minute Trump regulations. But it’s unclear where the rule ranks on the incoming administration’s list of policies targeted for reversal.
“It’s everybody’s expectation in a Biden administration that these types of rollbacks will be fixed,” Fischer said. “But it’s going to take time, and they can’t do every one of them overnight. And all of these are going to take some political capital to do right. There’s been a lot of damage done.”
Haaland, a Democratic U.S. House member from New Mexico, cosponsored a bill last session that would have clarified that incidental bird deaths are illegal under the migratory bird law. Representatives for Biden’s transition and Haaland’s House office did not return messages seeking comment.
Democrats’ wins in Senate election runoffs in Georgia this month tipped control of the Senate and opened the possibility that Congress could reverse the rule under a process known as the Congressional Review Act.