March 23, 2020- SACRAMENTO – California Attorney General Xavier Becerra last week, as part of a coalition of 11 attorneys general, filed a comment letter criticizing the U.S. Fish and Wildlife Service (FWS) for seeking to weaken longstanding protections for migratory birds. In its new proposed rule, FWS limits the scope of the Migratory Bird Treaty Act (MBTA) to no longer protect migratory birds from incidental harm caused by human activities. By narrowing the MBTA to only prohibit the intentional killing or capture of these birds, FWS removes incentives for industries to ensure migratory birds are not harmed by their activities. In its comment letter, the coalition argues that the proposed rule violates the MBTA and the Administrative Procedure Act (APA).

“The Trump Administration is handing out ‘get out of jail free’ cards to industry interests while endangering our environment,” said Attorney General Becerra. “This latest action to roll back protections for migratory birds directly conflicts with the U.S. Fish and Wildlife Service’s mission to conserve and protect wildlife and their habitats. In California, we understand the vital importance of migratory birds to our ecosystem and, as always, stand ready to hold the Trump Administration accountable.”

Migratory birds are vital to California’s ecosystem, culture and economy. Millions of migratory birds, including threatened and endangered species, move through California each year as part of the Pacific Flyway, a migratory superhighway that runs from Alaska to South America. The MBTA originally codified an agreement between the United States and Canada to help ensure the preservation and protection of more than 1,000 species of migratory birds, including the bald eagle, from both intentional and incidental mortality caused by human activities. Over the years, the MBTA has broadened to include similar agreements with Mexico, Japan, and Russia.

Democratic and Republican administrations alike have consistently interpreted the MBTA to require utilities and operators of facilities such as wind farms, power lines, and oil waste pits to take preventative measures to reduce and mitigate bird mortality. FWS’s new rule would exempt companies from these requirements. Experts estimate that eliminating these requirements would increase migratory bird deaths by tens of millions each year.

In the comment letter, the coalition argues that the proposed rule is not just bad policy. It violates the MBTA and the APA, and it conflicts with the States’ interests in protecting migratory birds for the benefit of their citizens. The coalition also submitted a comment letter in response to FWS’s Notice of Intent highlighting the need for a comprehensive environmental impact statement that addresses the anticipated loss of migratory birds and the secondary impacts the loss will have on biodiversity.

In September 2018, Attorney General Becerra, as part of the same coalition, filed a lawsuit challenging the Trump Administration’s decision to withdraw protections for America’s migratory birds by rolling back part of the MBTA. That litigation is ongoing. In November 2018, the California Department of Justice and the California Department of Fish and Wildlife released a legal advisory affirming that, despite any federal reinterpretation of the MBTA by the federal government, California would continue to enforce robust protections for migratory birds. 

Attorney General Becerra joins the attorneys general of New York, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, and Washington in filing the comment letter. 

A copy of the comment letter can be found here.
Source: CA. DOJ