2018 marks the 100-year anniversary of the Migratory Bird Treaty Act ("MBTA"), which protects migratory birds from "takes." On the eve of this anniversary, the Trump Administration's Interior Department issued Opinion M-37050, which decriminalized "incidental takes"—the taking/killing of a migratory bird that results from, but is not the purpose of, an activity—by concluding that the MBTA does not prohibit incidental takes. This is a reverse in course from the Obama Administration's interpretation that the MBTA criminalizes any action that kills a migratory bird. See Opinion M-37041.
This shift in interpretation is a potential boon to the energy industry, which has previously faced significant enforcement actions for incidental takes of migratory birds in connection with wind turbines, solar panels, and spills, to name a few. This is particularly true because, unlike other statutes protective of wildlife, the MBTA does not have a provision to allow a party to obtain a permit to cover incidental takes. Thus, companies faced automatic criminal penalties in the past, both under the Obama Administration's interpretation of the MBTA and before that, under the holding of United States v. FMC Corp., followed by the majority of courts.
Notably, in issuing Opinion M-37050, the Trump Administration's Interior Department employed an analysis similar to a more recent opinion from the Fifth Circuit, which limited the definition of a "take" under the MBTA by finding that it applied only to hunting and poaching situations.
The Interior Department's current position does not, however, provide complete protection to the energy industry with respect to incidental takes because it is limited to enforcement actions that might otherwise be taken under the MBTA. Companies may still be subject to liability pursuant to the broader definition of "take" under the Endangered Species Act or the Bald and Golden Eagle Protection Act as clarified in the Interior Department's April 2018 guidance memorandum and attached Q&A regarding the effect of Opinion M-37050.
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