Trump Administration Exempts Industry From The Migratory Bird Treaty Act By Ruling It Only Covers Birds Killed On Purpose, Resolving Long-Standing Concern That Accidentally Killing A Million Birds Still Carried A Fine

WASHINGTON. In the final weeks of his first term, President Trump's Interior Department finalized a rule formally adopting the position that the Migratory Bird Treaty Act of 1918 prohibits only the killing of migratory birds that a person or company specifically set out to kill, and not the millions of birds killed every year as an incidental byproduct of ordinary industrial operations.

For roughly a century, the law had been read to cover what regulators called incidental take, the birds that die when they land in an uncovered oil waste pit, fly into an unmarked power line, or are caught in a spill. Under that reading, companies were expected to net their tar ponds, flag their wires, and otherwise account for the predictable deaths their facilities caused. Under the new reading, a dead bird counts as a violation only if killing it was the conscious object of the activity, leaving the bird that drowns in a chemical pond a regrettable but entirely lawful outcome, provided the pond was there for some other reason.

The practical effect was clearest in the case most often cited by both sides. After the 2010 Deepwater Horizon disaster killed an estimated one million birds, BP paid 100 million dollars in penalties under the Act. Under the finalized rule, no such penalty could be assessed, because the company had not intended to kill the birds when it drilled the well. A source within the Interior Department described the change as a matter of basic fairness, explaining that the United States should not be in the business of punishing corporations for outcomes they did not specifically request.

The path to the rule was not entirely smooth. In August 2020, a federal judge struck down the legal opinion underpinning the policy, writing that the administration had adopted, in her words, a defenseless interpretation, and adding, "It is not only a sin to kill a mockingbird, it is also a crime." The administration responded by routing the same interpretation through a formal rulemaking, publishing it as a binding regulation in January 2021, days before leaving office and before the courts could weigh in again.

The President framed the move as part of his broader campaign to free American energy from what he repeatedly called job-killing regulation, a category that the administration confirmed now included rules against the killing of actual wildlife. Officials noted that the birds themselves would notice no change in their treatment, only in the paperwork that followed.

At press time, the Interior Department had clarified that the nation's migratory birds remained free to take the matter up with the responsible corporations directly, an option the birds were said to be weighing.