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Green groups sue US Interior Department to restore migratory bird protections

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Green groups sue US Interior Department to restore migratory bird protections

Several environmental groups have sued the U.S. Department of the Interior in an effort to reverse a 2017 memorandum that effectively protects energy companies and others from prosecution if their activities accidentally kill or injure migratory birds.

The groups worry that with no specter of federal prosecution, companies will be less careful to ensure that their construction plans and infrastructure projects are designed to limit damage to those birds.

"The new policy makes it much harder to protect birds from major bird traps — threats like oil pits, wind turbines, and communication towers in bird migration hotspots," Mike Parr, president of American Bird Conservancy, said in a statement May 24. "Leaving these threats unattended is like leaving manhole covers off along the sidewalk during rush hour — it's negligent, irresponsible, and guaranteed to cause harm."

Interior Principal Deputy Solicitor Daniel Jorjani in a December 2017 memo argued that the Migratory Bird Treaty Act of 1918, or MBTA, only prohibits "affirmative and purposeful actions, such as hunting and poaching," that kill or hurt any of the more than 1,000 bird species covered by the law. The MBTA originally was created largely to stop the rampant hunting, capture and selling of birds for their feathers or game, which had led to the extinction of several species.

The federal government historically has played a role in both enforcing the law under its prior interpretation and working with the energy industry to reduce or eliminate the potential for infrastructure to injure or kill birds protected by the law, the groups said in the lawsuit (National Audubon Society v. U.S. Department of the Interior, 1:18-cv-04601) filed with the U.S. District Court for the Southern District of New York on May 24.

But the memo reversed the Obama administration's policy that federal prosecutors can sue companies or people deemed to have not taken "reasonable" precautions to prevent their activities or infrastructure, such as transmission lines, oil pits and wind turbines, from killing or hurting migratory birds.

Interior is treating the memo as a final legal interpretation that is binding on all agencies and offices under it instead of initiating a rulemaking process that would offer opportunity for public input, the lawsuit said.

The lawsuit noted that the Interior's Fish and Wildlife Service has announced that it suspended all investigations of incidental take under the law. Moreover, the Fish and Wildlife Service recently cited the memorandum when it authorized DTE Energy Co. subsidiary DTE Midstream Appalachia LLC to continue vegetative clearing for the Birdsboro Pipeline Project in Pennsylvania during certain parts of the nesting season. DTE Energy was not immediately available for comment.

Parties to the lawsuit include the National Audubon Society, American Bird Conservancy, Center for Biological Diversity and Defenders of Wildlife. The Natural Resources Defense Council also is backing the effort, although it was not named in the lawsuit.