The Trump Team’s Incoherence On Migratory Bird Rules

The administration said it will go hunting for cases of wind energy companies unintentionally killing migratory birds — something it has long argued is not a violation of federal law.

Snow Geese feed at a farm in Skagit County, Washington. Photo by Bryan Hanson on Unsplash

This story was published in partnership with High Country News.

After allowing fossil fuel, chemical and other industrial sectors to kill migratory birds as long as those deaths are an inadvertent consequence of conducting business, the Trump administration now appears poised to restrict the one energy sector that President Donald Trump despises the most from doing the same: wind.

Since the beginning of Trump's first term, his administration has maintained that the unintentional killing of migratory birds — ducks, geese, terns, eagles and other species — does not violate the 1918 Migratory Bird Treaty Act. Gregory Zerzan, the acting solicitor of the Interior Department, reaffirmed that position in an April legal memo, which rescinded Biden administration-era protections for migratory birds. In its place, it reinstated a controversial legal opinion from the first Trump administration that effectively legalized all accidental, or “incidental,” killing of more than 1,000 such bird species. That includes deaths caused by oil and gas operations, power lines, wind turbines and chemical spills.

Interior Secretary Doug Burgum must not have gotten the memo. Last week, Burgum announced several new policy measures aimed at “ending special treatment” for wind energy. On that list is a mandate for Interior to “conduct a careful review of avian mortality rates associated with the development of wind energy projects located in migratory flight paths and determine whether such impacts qualify as ‘incidental’ takings of birds under the Migratory Bird Treaty Act and related laws.”

How the administration intends to carry out such a review without creating a legal quagmire for itself is unclear.

“The administration recently issued guidance saying the Migratory Bird Treaty Act does not cover incidental take, so we do not anticipate that being a reason why a wind project might be delayed or cancelled,” Steve Holmer, vice president of policy for American Bird Conservancy, said in an email.

The Interior Department did not respond to Public Domain’s request for comment. In a video announcing the new policy measures on wind, agency spokesperson Aubrie Spady said studying the wind industry’s effects on migratory bird populations will “ensure wildlife protections remain robust.”

The Trump administration’s position on the MBTA dates back to a 2017 legal memo from then-Interior Solicitor Daniel Jorjani, which concluded the law prohibits only the intentional killing, capture or harassment of migratory birds. That interpretation broke with decades of legal precedent and, as I reported for HuffPost in 2020, effectively squelched federal investigations into migratory bird deaths.

In that memo, Jorjani wrote that “interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed.”

William Woody, who for more than a decade served as the top law enforcement chief at both the U.S. Fish and Wildlife Service and the Bureau of Land Management, told Public Domain he’s struggling to make sense of the Trump administration’s announcement last week.

“[Trump’s] policy back when was, ‘No, we do not pursue incidental take cases,’” Woody said. “And now he’s singled out wind energy, kind of like he’s aligning with the 10th Circuit (Court of Appeals).”

Woody was referring to the 10th Circuit’s ruling in U.S. v. Apollo Energies, Inc., which affirmed that companies can be held criminally liable for violations of the MBTA if their actions cause “foreseeable” harm or death to birds, even if those impacts are unintentional.

Notably, Jorjani took a direct swing at the 10th Circuit ruling in his 2017 memo, arguing that “interpreting the MBTA to apply strict criminal liability to any instance where a migratory bird is killed” would “tum every American who owns a cat, drives a car, or owns a home — that is to say, the vast majority of Americans — into a potential criminal.”

As it did in 2017, the oil and gas industry lobbied the current Trump administration to roll back protections for migratory birds.

As Public Domain first reported last week, the American Petroleum Institute, a powerful industry trade association, sent top Interior Department officials a lengthy wishlist in mid-April that included a call for the Trump administration to reinstate its first-term rules governing the incidental take of migratory birds. Days later, Fish and Wildlife fulfilled the industry’s request, withdrawing a Biden administration-era rule that had restored pre-Trump protections under the MBTA.

The Trump administration’s sudden interest in incidental take violations — something it has repeatedly attempted to exclude from the scope of the MBTA — is part of a broader effort to stymie wind energy development both on and offshore. Among other things, Burgum has described wind energy as “highly subsidized,” “unreliable” and “expensive,” and recently began requiring all wind projects on federal lands and waters to get his personal approval, Politico reported.

“When you’ve got 1,500 wind farms, 76,000 windmills, wind towers, in America, clearly the amount of birds that are being killed on on-shore projects by wind is substantial," he said during a Fox News interview on Thursday. “Birds get killed, they drop to the ground. In my home state, North Dakota, where we had a substantial amount of wind, the coyotes love it because you’ve got taxpayer-subsidized protein falling from the sky.”

However, the number of birds killed by wind turbines pales in comparison to those killed by fossil fuel operations, skyscrapers, power lines and domestic cats, according to federal data.

On the campaign trail last year, Trump expressed shock that “nobody goes to jail” when a bald eagle is killed by a wind turbine. In fact, several wind energy companies have been prosecuted or pleaded guilty to violations of the MBTA, including for killing and wounding eagles.

Whatever impunity America’s energy producers now enjoy when they kill migratory bird species, Trump and his team have themselves to thank.