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US Interior scraps Trump-era migratory bird rule, weighs new permitting approach

Highlights

Could affect energy infrastructure, development

Restores liability for incidental take of birds

In a move with potential implications for oil, natural gas and electric infrastructure, the US Interior Department said Sept. 29 it will tighten restrictions protecting migrating birds earlier weakened by the Trump administration.

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The Trump administration had "limited the scope" of the Migratory Bird Treaty Act, a statute aimed at protecting bird populations, Interior said in a statement. The Biden administration's final rule, which would be published Oct. 4 in the Federal Register, scraps the Trump-era regulation but does not replace it. The new rule would become effective 60 days after its publication.

"We will introduce new policies in the future, including a proposed regulation codifying an interpretation of the MBTA that prohibits incidental take and potentially a regulatory framework for the issuance of permits to authorize incidental take," Interior said in the rule.

The US Fish and Wildlife Service, an Interior agency, also intends to publish an advance notice of proposed rulemaking to gather information necessary to potentially hatch new bird protections. Additionally, Interior will issue a director's order to clarify how the federal government will use its resources to uphold previous interpretations of the law.

The new approach has potential to affect permitting and conditions on construction for a wide range of energy projects, including renewable energy sources, such as wind and solar projects, oil and gas pipelines, and transmission lines.

The American Petroleum Institute, citing 2017 Fish and Wildlife Service data, noted that natural gas and oil operations are "not a primary threat to bird population," pledging to support policies that "enhance environmental protection and safe, responsible energy development." As of 2017, collisions with electrical lines contributed to an estimated 25.5 million average bird deaths annually, compared with 750,000 associated with oil pits and 234,000 deaths associated with collisions with land-based wind turbines, according to FWS.

"This rule revocation eliminates statutorily justified clarity and certainty that will impact industry and American consumers alike," API Senior Policy Advisor Amy Emmert said in an email. "We look forward to reviewing the Director's Order and working with DOI throughout this process to maintain the original intent of the MBTA."

The Interstate Natural Gas Association of America and the American Clean Power Association did not immediately reply to queries for comment on the Interior announcement.

'Incidental' take from energy infrastructure

A key priority for the Biden administration was a return to the prior legal interpretation under which them MBTA criminalizes not only direct take of bird but also "incidental" take from activities such as energy projects.

Notably, the Fish and Wildlife Service's advance notice of proposed rulemaking considers using new general permits for specific activity types, such as transmission and distribution, wind and solar projects, pipelines, and oil and gas disposal pits. But the key details of those new permit approaches are still to come.

Many companies continued to use best management practices under the Trump administration to avoid impacts to birds on a voluntary basis, said Ann Navaro, a partner with the Houston-based law firm of Bracewell. "Now, with the MBTA subject to reinterpretation as covering incidental take, that becomes more of a critical requirement to avoid legal liability," Navaro said.

The timing of pipeline construction has at times been affected by tree-cutting windows that avoided nesting seasons for migratory birds.

"With this change I would expect prohibitions on harvesting [including for pipelines and other infrastructure] during nesting season to come back into play," Patrick Hunter, a managing attorney with the Southern Environmental Law Center, told S&P Global Platts.

During the Trump administration, the service on some occasions eased requirements for limitations on tree- or vegetation-cutting periods, citing the voluntary nature of the revised legal interpretation.

Interior said the Trump administration's regulation drew various legal challenges, as well as concerns from international treaty partners, including Canada. With the new rule in place, the agency said it intends to implement the Migratory Bird Treaty Act in a manner more consistent with actions taken prior to the Trump administration.

The Trump administration's rule would have exempted companies and people from liability when energy infrastructure, such as wind turbines and power lines, resulted in the unlawful death of protected birds. That regulation was set to go into effect in February, but the Biden administration delayed it until March and then issued a proposal to revoke the regulation in May.