By: Sam Lukens
President Donald Trump has, unsurprisingly, rolled back a whole host of Obama era policies.[i] Currently, the presidential administration is looking to cement new standards pertaining to the Migratory Bird Treaty Act.[ii] Enacted in 1918, the Migratory Bird Treaty Act states that it is illegal “to hunt, take, capture, [or] kill” any migratory birds.[iii] The government has historically interpreted the word “take” to encompass incidental killings of birds.[iv] While guidelines were issued in April 2018, the Trump administration wants to clarify that individuals and industrial operators (including oil, gas, wind, and solar companies) will not face prosecution if they accidentally kill birds.[v] Whereas in the past, many energy producers were subject to prosecution by the United States government for the accidental killing of migratory birds, they will now be free to operate without fear of such actions.[vi]
While this clarification may benefit those in the energy business, it is detrimental to the goals of agencies like the U.S. Fish and Wildlife Service.[vii] The Director of the Fish and Wildlife Service, Aurelia Skipwith, noted that migratory bird protection is an integral part of the agency’s mission of protecting the country’s wildlife and plants.[viii] Various reports have been published concerning the effects of the Trump administration’s stance.[ix] According to conservation groups, energy companies have been responsible for the deaths of hundreds of birds without penalty.[x] Previously, standards required these energy industries to take protective measures against the involuntary killing of migratory birds.[xi] The primary fear now is that, without the threat of prosecution, industries will no longer spend the money on these protective measures.[xii]
Environmental conservation groups have every reason to be concerned. Wilderness Society President Jamie Williams stated, “Trump is the worst President for the Environment in our history.”[xiii] In addition to this interpretation of the Migratory Bird Treaty Act, the Trump administration has effectuated a number of anti-environment policies to lessen the requirements for businesses to comply with environmental standards.[xiv] The Administration’s policies have been, effectively, anti-environment and anti-Obama; they have also been pro-business.[xv] Trump’s pro-business sentiment appears to have resonated with many Americans. However, the country is divided, and the environment, particularly climate change, is a hot button issue.
Rolling back environmental policies opens up the Administration to potential challenges. Multiple conservation organizations have challenged the Administration’s interpretation in federal court.[xvi] To understand the potential legal issues, it is important to analyze the Migratory Bird Treaty Act historically. In declaring the Migratory Bird Treaty Act constitutional in Missouri v. Holland, 252 U.S. 416, 416 (1920), the Supreme Court emphasized the government’s treaty making power.[xvii] “By Article II, §2, the power to make treaties is delegated expressly, and by Article VI treaties made under the authority of the United States…are declared the supreme law of the land.”[xviii] The crux of the case was whether the states had power to regulate this under the Tenth Amendment.[xix] A state’s general ability to regulate in the absence of such a treaty was not enough to overcome the treaty itself.[xx]
While the business and environmental consequences have materialized, this new treaty interpretation could arouse new legal consequences. The Supreme Court recognized the Migratory Bird Treaty Act and its strict enforcement as a valid exercise of the treaty-making power, but it did not expressly address the effects of non-enforcement.[xxi] Assuming this new standard takes effect after following proper procedure, one could argue there is no longer a need for the treaty itself. If the entire treaty and subsequent act are repealed, or effectively repealed, what follows could be an emphasis on more state-specific laws on the protection of birds. There may be a trend where more environmentally conscious states pump out legislation to ensure the protection of wildlife. Surely, there will be more contention on all sides as this situation continues to unfold.
[i] Juliet Eilperin, Trump administration eases rule against killing birds, Wash. Post (Dec. 26, 2017, 5:34 PM), https://www.washingtonpost.com/politics/trump-administration-eases-rule-against-killing-birds/2017/12/26/1be9afe6-ea72-11e7-9f92-10a2203f6c8d_story.html [https://perma.cc/YM2A-7MDZ].
[ii] Darryl Fears & Juliet Eilperin. A controversial legal opinion weakened a law to protect birds. Now it might be made permanent. Wash. Post (Jan. 30, 2020, 4:58 PM), https://www.washingtonpost.com/climate-environment/2020/01/30/controversial-trump-legal-opinion-weakened-law-protect-birds-now-they-want-make-it-permanent/ [https://perma.cc/B575-A3V8].
[iii] Migratory Bird Treaty Act, 16 U.S.C. §703 (1918).
[iv] See Eilperin, supra note i.
[v] Fears, supra note ii.
[vi] Id.
[vii] Id.
[viii] Id.
[ix] Id.
[x] Id.
[xi] Fears, supra note ii.
[xii] See id.
[xiii] The facts on Trump’s terrible environmental record. The Wilderness Society (July 8, 2019), https://www.wilderness.org/articles/blog/facts-trumps-terrible-environmental-record [https://perma.cc/C2Y9-NWCA].
[xiv] Sarah Gibbens, 15 ways the Trump administration has changed environmental policy, National Geographic (Feb. 1, 2019), https://www.nationalgeographic.com/environment/2019/02/15-ways-trump-administration-impacted-environment/ [https://perma.cc/G735-YSFT].
[xv] Id.
[xvi] Fears, supra note ii.
[xvii] Missouri v. Holland, 252 U.S. 416, 432 (1920).
[xviii] Id.
[xix] Id. at 433-34.
[xx] Id. at 434.
[xxi] See id. at 432-35.