Speaker 1: There's a law on the books that makes it illegal
Speaker 1: to kill certain migratory birds, but the Trump administration says
Speaker 1: that law doesn't take into account all the bad things
Speaker 1: birds do. So today on Parts Pavilion, we ask the
Speaker 1: question birds good or bad? Hello, and welcome back once
Speaker 1: again to Parts Pervilion, the environmental podcast from Bloomberg Law.
Speaker 1: I'm your host, David Schultz. So here's a little quick
Speaker 1: and dirty environmental law lesson. Whenever a federal agency, any agency,
Speaker 1: does anything that might hurt the environment, the law requires
Speaker 1: it to come up with a report that studies the
Speaker 1: negative consequences and determine whether the thing the agency wants
Speaker 1: to do is worth it in spite of the environmental harm.
Speaker 1: The government issues tons of these reports all the time,
Speaker 1: but it recently came out with one that was, well,
Speaker 1: a little unusual. This report was from the Department of
Speaker 1: the Interior, and it was created to justify a change
Speaker 1: to a federal rule that prohibits the killing of migratory birds,
Speaker 1: either on purpose or accidentally. This rule, known as the
Speaker 1: Migratory Bird Treaty Act, is part of an international bird
Speaker 1: compact with the three North American countries plus Russia and Japan,
Speaker 1: and it's been around for a long time. But Interior
Speaker 1: Department lawyers recently re examined the MBTA and they determined
Speaker 1: that the treaty says accidental bird killings are legal, and
Speaker 1: that the federal rules should be changed to reflect this. Now,
Speaker 1: that wasn't the unusual part of the report. What was
Speaker 1: unusual was the reason the Interior Department gave to justify
Speaker 1: the inevitable increase in bird deaths that doing this would cause.
Speaker 1: It said, actually, birds are kind of bad for humanity
Speaker 1: in a lot of different ways. For example, remember that
Speaker 1: time birds crashed into that airplane and then the plane
Speaker 1: had to do an emergency landing in the Hudson You
Speaker 1: know what I'm talking about. They made a movie about
Speaker 1: it with Tom Hanks. Call you a here. I don't
Speaker 1: feel like a hero. So Bloomberg Law reporter Bobby McGill
Speaker 1: was the one who noticed this Interior Department report, and
Speaker 1: he says allowing accidental bird killings under the Migratory Bird
Speaker 1: Treaty Act would be a sea change in how this
Speaker 1: law functions. What it does is prevent or aims to
Speaker 1: prevent the killing of migratory birds without a permit from
Speaker 1: what's now the US Fish and Wildlife Service. The federal
Speaker 1: government has to give you permission to kill birds. And
Speaker 1: since you know the MBTA applies to about a thousand
Speaker 1: species or more, actually it has a pretty big effect. Okay,
Speaker 1: well that is actually way more straightforward than I thought
Speaker 1: it would be. But what is the Interior Department proposing
Speaker 1: to do here with this rule change? So for about
Speaker 1: a century, the Migratory Bird Treaty Act, it established fines
Speaker 1: for unintentional killing of birds. For example, the biggest impact
Speaker 1: that this has had that I'm aware of was after
Speaker 1: the BP oil spill in the Gulf of Mexico. BP
Speaker 1: was fined one hundred million dollars for unintentionally killing scores
Speaker 1: of birds with its oil slick. And in twenty seventeen,
Speaker 1: the Interior Solicitor's Office basically reinterpreted the MBTA to apply
Speaker 1: only to intentional killing of birds rather than unintentional killing
Speaker 1: of birds. And this is a reinterpretation of a law
Speaker 1: that's been on the books for one hundred years, that's right,
Speaker 1: And every administration since nineteen what was that the Wilson
Speaker 1: administration has has interpreted this to apply to unintentional killing.
Speaker 1: So in other words, if you're an oil and gas
Speaker 1: operator and you have a like a wast pit sitting
Speaker 1: next to your oil well and your bird and a
Speaker 1: bird dies in the waist pit, then you're responsible for
Speaker 1: that bird death. And you could be even though you
Speaker 1: know you weren't like taking a shotgun and going out
Speaker 1: and shooting birds. That wasn't what you were intending to do.
Speaker 1: But you're still responsible. Right. So the Trump administration issued
Speaker 1: this to the Interior. Your solicitor's office issued this opinion
Speaker 1: in twenty seventeen, reinterpreting this to applying only to intentional killing.
Speaker 1: So you have to say I want to kill a
Speaker 1: bird today, and you kill a bird and then you
Speaker 1: get a and then you're fined. So what this rule
Speaker 1: change does is codify that solicitor's opinion from twenty seventeen. Right, So,
Speaker 1: we've got an attorney I guess, someone who's sort of
Speaker 1: like the General Council at the Interior Department saying hey,
Speaker 1: I think this you know, Bird Treaty Act only applies
Speaker 1: to intentional killings, not to unintentional killings. Now the Trump
Speaker 1: administration is taking that opinion and saying we're going to
Speaker 1: make this into federal law. Essentially, we're going to reinterpret
Speaker 1: the law here. Is this the first time this has
Speaker 1: been done? I mean you mentioned that, you know, this
Speaker 1: goes back to maybe the Wilson administration or whoever was
Speaker 1: president in nineteen eighteen. Sorry, we'll we'll look that up later. Yes,
Speaker 1: as it turns out, Bobby was right, it was Wilson.
Speaker 1: But is this the first time this interpret this law
Speaker 1: has ever been interpreted this way? As far as I'm aware,
Speaker 1: that's true. I mean, every administration has has interpreted this
Speaker 1: is to apply to unintentional killings as well as intentional killings. Right, So, okay,
Speaker 1: let's talk about why the Interior Department is doing this.
Speaker 1: I mean, I could see this is a I guess
Speaker 1: a very sort of pro business move. I mean, there
Speaker 1: are a lot of you know, large industrial businesses who
Speaker 1: have to worry about, you know, killing birds, and that's costly,
Speaker 1: and if they wouldn't have to worry about that, then
Speaker 1: that could save them some money. I understand that. Well.
Speaker 1: I mean, basically, at the end of the day, it's
Speaker 1: about letting the oil and gas industry and the energy
Speaker 1: industry generally speaking, off the hook for killing birds. And
Speaker 1: so you know, basically they are. The Administration is using
Speaker 1: the term regulatory or legal certainty to promote this and
Speaker 1: to basically say, you know, companies need to know what
Speaker 1: to expect when they, you know, build, when they drill
Speaker 1: for oil, or when they have any sort of commercial
Speaker 1: or industrial installation. They need to know what they're going
Speaker 1: to be liable for. And you know, if you unintentionally
Speaker 1: kill lots of birds, you know that might be unexpected.
Speaker 1: It really it's about fines, like the administration wants to
Speaker 1: make sure that migratory birds don't add extra cost to
Speaker 1: energy development. All right, we're going to take a quick
Speaker 1: break here, but when we get back, we'll explain what
Speaker 1: Captain Sully Selenburger has to do with all this. Stay tuned.
Speaker 1: We are back and we're talking with reporter Bobby McGill
Speaker 1: about the changes to the way the federal government protects birds.
Speaker 1: Bobby says, the thing that really caught his eye here
Speaker 1: was the Interior Department's support justifying its proposed changes something
Speaker 1: that's also known as an environmental impact statement. So basically
Speaker 1: what they had to do is to make this as
Speaker 1: part of it, this is a rule making right, So
Speaker 1: they had to do an environmental impact statement. They had
Speaker 1: to look at all the ways that this is going
Speaker 1: to affect the environment, and they you know, in this
Speaker 1: they say it's going to kill lots of birds. It's
Speaker 1: gonna you know, these birds are declining because of climate change,
Speaker 1: and it's going to have a detrimental impact on birds themselves.
Speaker 1: This rule, as it outlines all of those impacts, it
Speaker 1: also it has this this section called Detrimental Impacts of
Speaker 1: migratory Birds on Humans. And basically what this is is,
Speaker 1: you know, they're building the case for how birds themselves
Speaker 1: affect people in negative, negative ways. It's evidence to roll
Speaker 1: back this. I mean, this isn't exclusively what they're hinging
Speaker 1: their arguments on here by any means, but you know,
Speaker 1: it's just more evidence they're using to show that, you know,
Speaker 1: companies don't need to be responsible for killing the birds
Speaker 1: that their industrial practices and their installations effect. And so
Speaker 1: basically what they're saying here is that birds can kill people.
Speaker 1: They you know, can slam into airplanes, they can you know,
Speaker 1: they can slam into your into your car windshield, they
Speaker 1: could you know, they spread disease like the Avian flu,
Speaker 1: those sorts of things. A parallel to that might be hypothetically,
Speaker 1: you know, the federal government trying to outline all the
Speaker 1: ways that trees are damaging to people, right, because like
Speaker 1: trees would fall on houses or or you know, trees
Speaker 1: house snakes that might bite you or something. Right. And
Speaker 1: and to be clear, I mean this is a really
Speaker 1: important thing because you know, first of all, birds are natural,
Speaker 1: second that birds are essential to global ecosystems, and there
Speaker 1: are indicator species. They indicate the health of the ecosystems
Speaker 1: which we all live in and rely on. And they're
Speaker 1: outlining all the ways that you know, migratory birds are
Speaker 1: bad for you, and one of those ways is colliding
Speaker 1: with airplanes. And so in this section about how they
Speaker 1: collide with airplanes, they cite the miracle on the Hudson flight.
Speaker 1: US Airways flight fifteen forty nine from two thousand and nine.
Speaker 1: I remember it, you know, to Canada geese or Canada
Speaker 1: geese struck, you know, the engines of this air bus
Speaker 1: and it you know, there was a power outage in
Speaker 1: the in the flight had to ditch successfully fortunately in
Speaker 1: the Hudson River. And so they're essentially using the miracle
Speaker 1: on the Hudson flight. Captain Selly's flight as one of
Speaker 1: you know, a long list of reasons to roll back
Speaker 1: protections for migratory birds. So, okay, you had a lot
Speaker 1: of great quotes from environmentalists in your story who were
Speaker 1: really aghast and kind of upset about this. What did
Speaker 1: they have to say about the justifications here? So one
Speaker 1: senior attorney for the Natural Resources Defense Council says, she's
Speaker 1: she's never seen something like, you know, detrimental impacts of
Speaker 1: any sort of natural thing on humans in an environmental
Speaker 1: impact statement. And she said that, you know, to her,
Speaker 1: it's mind boggling that, you know, the nation's top wildlife agency,
Speaker 1: in this case, the Fish and Wildlife Service, would associate
Speaker 1: harmed humans from birds in an environmental impact statement for
Speaker 1: a reinterpretation of a statute that is entirely focused on
Speaker 1: protecting birds. You know, she seemed to be a gas
Speaker 1: at the idea that, you know, they would even mention
Speaker 1: the miracle on the Hudson flight and spreading the avian
Speaker 1: Eric Schneider at the National Audubon Society told me that
Speaker 1: the use of an aviation accident to justify the loss
Speaker 1: of millions of birds as results of repealing decades of
Speaker 1: bird protections is insulting. This was the subject of a
Speaker 1: really capative exchange between you know, Interior Secretary David Bernhardt
Speaker 1: and you know a couple of senators. So I'm a
Speaker 1: position taken by multiple circuit courts, respectory that is not true.
Speaker 1: It's absolutely true. All right, we will pursueize. And basically
Speaker 1: Bernhardt sparred with Senator Chris van Holland from Maryland, who
Speaker 1: was basically accusing him of trying to let someone like
Speaker 1: BP off the hook. So, in other words, a future
Speaker 1: BP oil spill would not necessarily result in a one
Speaker 1: hundred million dollar fine for BP or a company like it,
Speaker 1: you know, for all the birds it kills. So okay,
Speaker 1: I'm not an environmental scientist. I don't claimed to you know,
Speaker 1: know a lot about birds or even really like birds
Speaker 1: or care for birds, to be honest. So I'm not
Speaker 1: going to be able to say, you know, yes, who's
Speaker 1: right here, or whether the Trump administration, whether these arguments
Speaker 1: are ridiculous, or whether they have merits. So let's put
Speaker 1: that aside. But I have to imagine if this goes
Speaker 1: through and it's finalized, the environmentalists are going to take
Speaker 1: it to court and will they be able to use
Speaker 1: some of these justifications that are a little out there.
Speaker 1: Could they use that as ammunition for getting a court
Speaker 1: to overturn this, they seem to think. So. I mean,
Speaker 1: you know, it just on on the face of it,
Speaker 1: it certainly seems highly unusual to the high highlight the
Speaker 1: way that birds, which are which are absolutely essential to
Speaker 1: ecosystem health, are damaging to people, especially when you know
Speaker 1: human cost climate change is is you know, causing these
Speaker 1: these birds to decline in number, And so I think that,
Speaker 1: you know, environmental groups certainly see this as as something
Speaker 1: that they can challenge in court. So, Bobby, let's talk
Speaker 1: timing here. We have about a half a year before
Speaker 1: a new administration might come in if the Trump campaign
Speaker 1: does not succeed at gaining a second term. Do they
Speaker 1: even have time to finalize this and to get this
Speaker 1: into the books or is this kind of something that
Speaker 1: they might just sort of leave on the table. I
Speaker 1: think that they are determined to find a way to
Speaker 1: finalize this before you know, the end of his first term. Yeah,
Speaker 1: I just know that, you know, in the summer, in
Speaker 1: the fall of an election year or presidential election year,
Speaker 1: that's a time when you see federal agencies really crank
Speaker 1: out a lot of regulations because they're really trying to
Speaker 1: get it into the wire. Of course, you know, if
Speaker 1: if the Trump administration wins a second term, this is
Speaker 1: all moot. But it sounds like they have they're really
Speaker 1: motivated to get this done like this year or bust. Right,
Speaker 1: it sounds like it. But you know, they've they've got
Speaker 1: a lot of regulations in the hopper. They've they've really
Speaker 1: tried to you know, move things along during the uh,
Speaker 1: you know, their deregulatory agenda, during the COVID crisis, and
Speaker 1: I think that, you know, it seems to be it
Speaker 1: seems to suggest they're trying to get as much done
Speaker 1: as possible before, if not before the election, then certainly
Speaker 1: before inauguration day. That's it for today's episode of Parts
Speaker 1: per Billion. If you want more environmental news, check out
Speaker 1: our website news dot Bloomberg environment dot com. That website,
Speaker 1: once again is news dot Bloomberg environment dot com. Today's
Speaker 1: episode of Parts Pervilion was produced by myself along with
Speaker 1: Josh Block. Pars Pavilion was created by Jessica Coombs and
Speaker 1: Rachel Dagel, and a special thank you to Marissa Horne,
Speaker 1: who's edited this podcast now for quite some time. She's
Speaker 1: moving on, but we wanted to express our deepest, most
Speaker 1: sincere sense of grat thanks. And the music for today's
Speaker 1: episode is a Message by Jizarre and Emerald Steps by
Speaker 1: Tom Hillock and Nicholas Boskovic. They were used under a
Speaker 1: Creative Commons license, and thank you, of course for listening.
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