Change Is in the Air: The Migratory Bird Treaty Act, the Endangered Species Act and the Biden Administration

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The Biden Administration has signaled that it will be rolling out significant changes related to the interpretation and enforcement of key provisions of the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA). Unprecedented regulatory changes to both the MBTA and the ESA were the subject of intense controversy during the Trump Administration. In the first few months of the Biden Administration, federal authorities have already indicated that they plan to roll back their predecessors’ efforts and potentially clarify and/or expand the regulatory framework of these two key statutes. This Advisory serves as a high level summary of relevant background information and the current state of affairs while we await further action by the new administration.

Migratory Bird Treaty Act

There has been significant uncertainty regarding the parameters of the MBTA since long before President Trump took office due to a Federal Circuit Court split that no prior administration had settled. Specifically, the Fifth Circuit has held that the MBTA only prohibits intentional taking of migratory birds, and not incidental take (accidental harm).¹ The Second and Tenth Circuits, on the other hand, have held that the MBTA prohibits incidental take and therefore criminal prosecution of accidental harm is warranted.²

In December 2017, the Department of the Interior (DOI) released an opinion seeking to resolve this uncertainty that stated that the MBTA does not prohibit incidental take.³ This opinion represented an abrupt departure from decades of agency precedent under which DOI had discretion to prosecute individuals and companies for accidentally injuring migratory birds.⁴ Environmental groups launched an immediate challenge to this development and in August 2020, the Southern District of New York vacated the opinion.⁵ However, on January 5, 2021— mere weeks before the transition—the Trump Administration finalized a rule eliminating criminal penalties for incidental migratory bird deaths.

The Biden Administration has already taken several steps to undo this rule. On February 5, 2021, the Fish and Wildlife Service delayed the effective date of the rule and re-opened the public comment period. On the day the rule was to go into effect, the Biden DOI permanently revoked and withdrew the 2017 DOI opinion.⁶ The Biden Administration simultaneously stated that it would undo the January rule and propose a replacement though further details were not provided. The administration did express that it was open to reevaluating its approach to the MBTA to develop common sense standards. One thing the Biden Administration could consider would be an incidental take permit system, similar to what already exists under the ESA, to address the uncertainty from the circuit split over the interpretation of the MBTA.

Now that the Trump rule will be revoked, there is nothing in place resolving this issue for businesses that are at risk of accidentally harming birds, such as construction companies, companies that own wind farms and/or above-ground transmission lines, or any company that might accidentally spill a substance that is hazardous to birds (such as oil). It is unknown when the Biden Administration will propose its replacement rule or whether the DOI will revisit the Obama-era discussions about developing an incidental take program. In the interim, there will likely be an enforcement lull.

Endangered Species Act

The Trump Administration initiated sweeping changes to the ESA. The first three reforms were instituted in 2019, and two more went into effect in 2020. All of these actions rolled back protections for endangered and threatened species, and were opposed at each step along the way by conservation groups.⁷The following year, the Services adopted a rule that redefined critical habitat so narrowly that areas that could one day become habitat or that could be restored to become suitable habitat were no longer protected.⁸ That same week—in the waning days of the administration—the Services adopted another rule allowing regulators to take into consideration economic losses for humans from the designation of critical habitat, as a potential basis to exclude critical habitat from protection.⁹ Several other Trump era ESA-related decisions that were hotly contested and condemned by conservationists include: delisting the gray wolf; declining to list other species, including the iconic Joshua Tree; and slashing the protected habitat of the northern spotted owl by 3.5 million acres.

On the first day of the new administration, President Biden directed federal agencies to review Trump-era polices that were “damaging to the environment, unsupported by the best available science, or otherwise not in the national interest.” Immediately thereafter, the new administration announced that it would review four ESA regulations in particular: the FWS definition of habitat for purposes of designating critical habitat; the regulation setting forth the process for excluding areas from critical habitat; the 2019 regulations regarding listing species; and the 2019 regulations pertaining to interagency cooperation under ESA Section 7. The administration further said it would review the revision to the critical habitat for the northern spotted owl, the findings on 12 other species, the resource management plans for the greater sage grouse, and the decision to delist the gray wolf. The new administration also faces a backlog of hundreds of species awaiting a decision on federal protection under the ESA that were not addressed by the Trump FWS.

Arnold & Porter attorneys will continue to closely monitor these developments and the related compliance implications for our clients.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.