The Conservation Column
By Pepper Trail
Welcome back from summer! I hope you all got out and spent plenty of time enjoying the wild birds and wild places of our beautiful region – maintaining social distancing, of course.
So, what do you want to hear first – the good news or the bad news? I think most people prefer to hear the bad news first. But there’s been so little good news lately, let’s start with that.
Resounding Victory for the Migratory Bird Treaty Act
No law degree is required to understand the ruling U.S. District Judge Valerie Caproni handed down on August 10, declaring that the Interior Department’s interpretation of the century-old Migratory Bird Treaty Act (MBTA) is flat-out wrong.
The judge’s decision struck down a 2017 legal opinion issued by Daniel Jorjani, Interior’s top lawyer, which claimed the MBTA did not prohibit “incidental take,” a term for the unintentional but foreseeable and avoidable injury or killing of birds, often through industrial activity. For decades, the U.S. Fish and Wildlife Service (FWS) has used the threat of potential prosecution under the MBTA to convince companies to take steps to prevent killing birds, such as covering oil waste pits or marking power lines to make them more visible to birds in flight.
Under Jorjani’s opinion, even mass killings of birds—such as the 2010 BP oil spill, which killed an estimated 1 million birds and resulted in a $100 million fine against the company un-der the MBTA—would not be punishable if killing birds wasn’t the intention. Guided by that interpretation, the FWS has opted not to investigate cases of incidental take, and even counseled companies and local governments that they need not take steps to protect birds.
Caproni eviscerated that reading of the law. Powerfully referencing To Kill a Mockingbird, she wrote “It is not only a sin to kill a mocking-bird, it is also a crime.” That has been the letter of the law for the past century. But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”
The ruling is a major win for six environmental groups (including National Audubon) and eight states whose three consolidated complaints argued that the law clearly makes it illegal to kill, hunt, capture, or attempt to capture a bird or egg without a permit “by any means or in any manner.” Caproni agreed, ruling that Interior’s position was “simply an unpersuasive interpretation of the MBTA’s unambiguous prohibition on killing protected birds.” The judge also rebuked Jorjani for issuing an opinion without tapping the expertise of federal wildlife officials. “There is no evidence of input from the agency actually tasked with implementing the statute: FWS,” she wrote.
Conservationists were thrilled at the judgment’s forceful endorsement of their position. “The ruling is completely unambiguous on every count. Every rationale the government gave to try to uphold this rollback of the MBTA, the judge shot them all down,” says Erik Schneider, policy manager for the National Audubon Society, which was among the plaintiffs.
Caproni’s decision is a significant blow to Interior’s effort to enshrine Jorjani’s opinion in a formal rule, which would make the allowance of incidental take more difficult for a later administration to reverse. Part of the justification for such a reversal could come from the department’s recent draft environmental impact statement on the proposed rule, which says it is likely to push some bird species onto the endangered species list.
An Interior spokesperson declined to say if the department would continue work to finalize that rule despite the court decision, instead offering an emailed statement: “Today’s opinion undermines a common sense interpretation of the law and runs contrary to recent efforts, shared across the political spectrum, to decriminalize unintentional conduct.”
To buttress this victory, conservationists want Congress to step in and spell out even more clearly that the MBTA does not apply only to killing birds on purpose. The Migratory Bird Protection Act, which has passed a House committee but hasn’t yet received a vote in the full chamber or a companion bill in the Senate, would affirm that the MBTA prohibits incidental take. It also would set up a permitting program whereby companies would be protected from legal action as long as they adopt industry best practices to limit harm to birds. “Congressional action could potentially build on this victory,” Schneider says, “and help provide even greater stability going forward.”
Administration Opens the Floodgates on Methane
OK, now the bad news. I’ll limit myself to just two.
On August 12, the Environmental Protection Agency (EPA) finalized a rule eliminating Obama-era rules requiring energy companies to limit methane emissions. Methane is a by-product of natural gas extraction, and is a far more potent “greenhouse gas” than CO2. It is estimated that the rule changes will lead to the release of about 850,000 tons of planet-warming methane into the atmosphere over the next 10 years.
EPA director Andrew Wheeler has justified the move by citing EPA data showing that leaks from domestic oil and gas wells have remained steady over the past decade, even as oil and gas production boomed.
However, numerous recent studies show the opposite: that methane emissions from drilling sites in the United States are far more extensive than the EPA’s official numbers. Overall, methane levels are in fact climbing steadily nationwide, according to the research, and have reached record highs globally in part because of leaks from fossil fuel production.
“Over the past few years there has been an explosion of new research on this, and the literature has coalesced — 80 percent of papers show that methane from oil and gas leaks is two to three times higher than the EPA’s estimates,” said Robert Howarth, an earth systems scientist at Cornell University, who last year published a study estimating that North American gas production was responsible for about a third of the global increase in methane emissions over the past decade.
“It’s crazy to roll back this rule,” said Dr. Howarth. “Twenty-five percent of the human-caused warming over the past 20 years is due to methane. Methane is going up. We need it to go down.”
The Arctic National Wildlife Refuge Opened to Oil and Gas Leasing
On August 17, the Trump administration finalized its plan to open up part of the Arctic National Wildlife Refuge in Alaska to oil and gas development, a move that overturns six decades of protections for the largest remaining stretch of wilderness in the United States.
The decision sets the stage for what is expected to be a fierce legal battle over the fate of the refuge’s vast, remote coastal plain, which is believed to sit atop billions of barrels of oil but is also home to polar bears and migrating herds of caribou.
The Interior Department said on Monday that it had completed its required reviews and would begin preparations to auction off drilling leases. “I do believe there could be a lease sale by the end of the year,” Interior Secretary David Bernhardt said.
Environmentalists, who have battled for decades to keep energy companies out of the refuge, say the Interior Department failed to adequately consider the effects that oil and gas development could have on climate change and wildlife. They and other opponents, including some Alaska Native groups, are expected to file lawsuits to try to block lease sales.
“We will continue to fight this at every turn,” said Adam Kolton, executive director of the Alaska Wilderness League, in a statement. “Any oil company that would seek to drill in the Arctic Refuge will face enormous reputational, legal, and financial risks.”
Though any oil production within the refuge would still be at least a decade in the future, companies that bought leases could begin the process of seeking permits and exploring for oil and gas. The Democratic nominee for president, Joseph R. Biden Jr., has called for permanent protection of the refuge. However, if he were to win the White House, it could prove difficult for his administration to overturn existing lease rights once they have been auctioned to energy companies.
Even if oil companies do decide to purchase leases, that is still just the first step in a long, uncertain process. “You’ve got a lot of tripwires ahead,” said David Hayes, who served as a deputy interior secretary under President Barack Obama and is now executive director of the State Energy and Environmental Impact Center at the New York University School of Law. “Anyone buying a lease is potentially buying years of litigation along with that lease.”
I hope I don’t have to convince any readers of The Chat that the most important thing you can do for birds – and for the planet – this year is to VOTE. Let me just repeat that: VOTE! VOTE! VOTE! VOTE! VOTE! VOTE! VOTE! VOTE! VOTE! VOTE!