Audubon Files Lawsuit to Protect Migratory Bird Treaty Act

A coalition of conservation groups is going to court to overturn Trump Administration’s weakening of the landmark bird protection law.

Tundra Swans. Photo: Joshua Pelta-Heller/Audubon Photography Awards

WASHINGTON  - “What the Trump administration did to the Migratory Bird Treaty Act was illegal and we are going to do whatever it takes to reverse it,” said David Yarnold, president and CEO of the National Audubon Society. “This bird-killer policy has already been struck down in court and we’re confident that we’ll see the same outcome again here.”

The National Audubon Society, joined by several other conservation organizations,** filed a federal lawsuit today in the Southern District of New York challenging the Trump Administration’s weakening of the Migratory Bird Treaty Act. This is not the first legal challenge to the rollback of the MBTA. In August of 2020, in response to a previous lawsuit filed by Audubon, other organizations, and states, the Southern District ruled that the administration’s 2017 Solicitor’s Opinion did not align with the intent and language of the 100-year-old law, and overturned the policy.

Despite this ruling, the administration spent the remainder of its term racing to finalize a regulation to codify the unlawful Solicitor’s Opinion, and published the regulation two weeks ago.

“While we’re confident in the wide-ranging and bipartisan support to reinstate these vital protections, this lawsuit is necessary to challenge a plainly illegal policy that will devastate our bird populations, said Sarah Greenberger, interim chief conservation officer, National Audubon Society. “With both the law and public opinion on our side, we intend to act not only in the courts but with the new administration and Congress to quickly reinstate and strengthen the decades-old precedent for protecting our nation’s birds.”

The 2017 policy change by the Trump administration ignored the intent and language of the law to protect and conserve birds.  Instead, it attempted to limit the MBTA’s protection only to activities that purposefully kill birds, exempting all industrial hazards from enforcement. Any “incidental” death—no matter how inevitable, avoidable or devastating to birds—became immune from enforcement under the law. If the Trump administration’s legal opinion had been in place in 2010, BP would have faced no consequences under the MBTA for the more than one million birds killed in the Deepwater Horizon oil spill.

New science has revealed the loss of 3 billion birds in North America since 1970 and that two-thirds of those birds are at risk of extinction due to climate change. In light of these alarming reports, the National Audubon Society is advocating for a multi-front approach to reinstate the longstanding and common sense interpretation this foundational law.

“We hope to see the Biden-Harris administration begin a process to reinstate MBTA protections and use the opportunity to add a reasonable permitting process to manage incidental take,” said Greenberger. “We also hope to see Congress pass the Migratory Bird Protection Act to clarify these longstanding protections and authorize this common-sense approach.”

The Migratory Bird Protection Act was passed out of the House Natural Resources Committee in the 116th Congress and had a bipartisan group of 90+ co-sponsors. The bill would secure protections for birds and direct the Fish and Wildlife Service (FWS) to develop a permitting process for “incidental take” through which relevant businesses would implement best management practices and document compliance, further driving innovation in how to best prevent bird deaths.

**Co-plaintiffs in the lawsuit filed today are: the American Bird Conservancy, Center for Biological Diversity, Defenders of Wildlife, Natural Resources Defense Council, National Wildlife Federation, and Sierra Club.**