Litigation, Political Risks Complicate Administration's Effort to Provide Regulatory Certainty on Migratory Bird Treaty Act Liability
- 6.23.2020
In an article for the Rocky Mountain Mineral Law Foundation's Natural Resources Law Network, Rachel Jacobson, Michael Hazel, Lauren Mercer and Raya Treiser analyze a recent rule proposed by the Trump Administration to clarify what conduct is permissible under the Migratory Bird Treaty Act. The authors suggest impacted industries, "continue to employ best practices to avoid harming migratory birds in order to minimize their litigation risk and protect their ongoing operations from prosecution."
Excerpt: For decades, competing court rulings and a lack of robust guidance from regulators left the regulated community in a state of uncertainty surrounding the reach of the Migratory Bird Treaty Act (MBTA). The Trump Administration recently proposed a rule intended to more clearly delineate what conduct is permissible under the Act, and what conduct will expose entities and individuals to criminal penalties. The rule, which builds on a December 2017 legal opinion from the Department of the Interior, would limit the MBTA’s criminal penalties only to conduct that intentionally kills or harms migratory birds. Unintentional or “incidental” harm to birds from otherwise lawful activities would no longer give rise to MBTA liability. Both the narrowing of criminal liability and the increase in regulatory clarity will be welcome relief for those in the oil and gas, wind, solar, and utility industries (among others) whose operations can unintentionally harm migratory birds.
