Interior seeks to scrap Trump-era policy limiting liability for bird deaths

The U.S. Department of the Interior is seeking to rescind the Trump administration's rule that would have protected the energy industry from assuming liability when its facilities killed or injured protected migratory bird species.

If finalized, the Biden administration's proposed regulation would scrap the Trump-era rule that sought to limit the scope of the Migratory Bird Treaty Act. The new proposal would require the U.S. Fish and Wildlife Service to continue "prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent," according to a May 6 Interior release.

"The Migratory Bird Treaty Act is a bedrock environmental law that is critical to protecting migratory birds and restoring declining bird populations," Interior Secretary Deb Haaland said. "Today's actions will serve to better align Interior with its mission and ensure that our decisions are guided by the best-available science."

During the final weeks of the Trump administration, the Interior published a rule that would have exempted companies and people from liability for the unlawful death of protected birds resulting from energy infrastructure, including power lines and wind turbines. The Obama administration had determined that federal prosecutors could sue energy companies if they failed to take "reasonable" precautions to ensure their facilities did not injure or kill the more than 1,000 federally protected bird species.

The Trump-era rule was slated to take effect on Feb. 8, but the Biden administration delayed the new regulation beforehand.

House Natural Resources Committee ranking member Bruce Westerman, R-Ark., called the proposal "unnecessary and impractical" while touting the Trump-era rule as a "commonsense solution."

"When we find areas where we can improve, clarify, and streamline those policies, we should do so," Westerman said in a May 6 statement. "That's exactly what the Trump administration did when they updated the [Migratory Bird Treaty Act] rule to protect farmers, renewable industries like wind, and others who may accidentally harm a migratory bird during their normal daily operations."

The federal government will accept comments on the May 6 proposal through June 7.