Friday, December 27, 2019

Understanding the Migratory Bird Treaty Act of 1918

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As I have reported in this space several times, the current US administration has been rolling back many environmental laws. The New York Times recently reported on the impacts of one of the latest rollbacks associated with the Migratory Bird Treaty Act of 1918.

Most of you have probably never heard of this act, but in fact, it is one of the earliest environmental laws signed into law in the United States. The law emerged due to the major decline in migratory birds in the late 19th and early 20th century, in part, due to the use of feathers in women's fashion. International trade in feathers, in a foreshadowing of later 20th century globalization impacts on the environment, caused a rapid decline in migratory birds. The act made it illegal to sell or trade in migratory birds. An important aspect of the law is that it made it illegal to kill migratory birds. Several other nations adopted the law making it one of the most important international agreements for the protection of wildlife.

The text of the law states "...it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barterbarter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof..."

The law has been broadly interpreted to require developers to take care not to harm migratory birds. Indeed, it was been considered a criminal offense to knowingly kill the birds in the development of a property.

The main change of the administration's interpretation of the law is that developers can knowingly kill the birds without penalty if the main intent of their death was not their death, but the development of the property. To put it another way, you could kill out a population of birds as you build a housing development because your intent is to build a housing development, not to kill the birds.

Of course, the death of the birds is the main outcome regardless. Given that the law was established to protect birds, I suspect that the interpretation by the Trump administration will likely be struck down by the courts. However, there is no doubt that major economic lobbying bodies, notably the oil and gas industry, have been pushing for the rule change. 

In the mean time, while the rule is in effect, there will be more bird deaths without penalty.

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